EXHIBIT 10.1
EXECUTION COPY
FIVE-YEAR CREDIT AGREEMENT
Dated as of October 17, 2005
Among
DTE ENERGY COMPANY,
as Borrower
and
THE INITIAL LENDERS NAMED HEREIN,
as Initial Lenders
and
CITIBANK, N.A.,
as Administrative Agent
and
BARCLAYS BANK PLC, JPMORGAN CHASE BANK, N.A.,
as Co-Syndication Agent as Co-Syndication Agent
and
KEYBANK NATIONAL ASSOCIATION, THE ROYAL BANK OF SCOTLAND PLC,
as Co-Documentation Agent as Co-Documentation Agent
CITIGROUP GLOBAL MARKETS 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........................................................................ 14
SECTION 1.03. Accounting Terms................................................................................... 14
ARTICLE II: AMOUNTS AND TERMS OF THE REVOLVING CREDIT ADVANCES AND THE FACILITY LCs.................................. 15
SECTION 2.01. Commitment......................................................................................... 15
SECTION 2.02. Making the Revolving Credit Advances............................................................... 15
SECTION 2.03. Fees............................................................................................... 16
SECTION 2.04. Termination or Reduction of the Commitments; Increase of the Commitments........................... 17
SECTION 2.05. Repayment of Credit Extensions..................................................................... 18
SECTION 2.06. Interest on Revolving Credit Advances.............................................................. 18
SECTION 2.07. Interest Rate Determination........................................................................ 19
SECTION 2.08. Optional Conversion of Revolving Credit Advances................................................... 20
SECTION 2.09. Prepayments of Revolving Credit Advances........................................................... 20
SECTION 2.10. Increased Costs.................................................................................... 21
SECTION 2.11. Illegality......................................................................................... 22
SECTION 2.12. Payments and Computations.......................................................................... 22
SECTION 2.13. Taxes.............................................................................................. 23
SECTION 2.14. Sharing of Payments, Etc........................................................................... 25
SECTION 2.15. Use of Proceeds.................................................................................... 26
SECTION 2.16. Facility LCs....................................................................................... 26
SECTION 2.17. Noteless Agreement; Evidence of Indebtedness....................................................... 29
SECTION 2.18. Extension of Termination Date...................................................................... 30
ARTICLE III: CONDITIONS TO EFFECTIVENESS AND CREDIT EXTENSIONS....................................................... 31
SECTION 3.01. Conditions Precedent to Effectiveness of this Agreement. ......................................... 31
SECTION 3.02. Conditions Precedent to Each Credit Extension...................................................... 32
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SECTION 3.03. Determinations Under Section 3.01.................................................................. 33
ARTICLE IV: REPRESENTATIONS AND WARRANTIES........................................................................... 33
SECTION 4.01. Representations and Warranties of the Borrower..................................................... 33
ARTICLE V: COVENANTS OF THE BORROWER................................................................................. 35
SECTION 5.01. Affirmative Covenants.............................................................................. 35
SECTION 5.02. Negative Covenants................................................................................. 37
ARTICLE VI: EVENTS OF DEFAULT........................................................................................ 38
SECTION 6.01. Events of Default.................................................................................. 38
ARTICLE VII: THE AGENT............................................................................................... 41
SECTION 7.01. Authorization and Action........................................................................... 41
SECTION 7.02. Agent's Reliance, Etc.............................................................................. 41
SECTION 7.03. Citibank and Affiliates............................................................................ 41
SECTION 7.04. Lender Credit Decision............................................................................. 42
SECTION 7.05. Indemnification.................................................................................... 42
SECTION 7.06. Successor Agent.................................................................................... 42
SECTION 7.07. Co-Syndication Agents and Co-Documentation Agents.................................................. 43
ARTICLE VIII: MISCELLANEOUS.......................................................................................... 43
SECTION 8.01. Amendments, Etc.................................................................................... 43
SECTION 8.02. Notices, Etc....................................................................................... 43
SECTION 8.03. No Waiver; Remedies................................................................................ 45
SECTION 8.04. Costs and Expenses................................................................................. 45
SECTION 8.05. Right of Set-off................................................................................... 47
SECTION 8.06. Binding Effect..................................................................................... 47
SECTION 8.07. Assignments, Designations and Participations....................................................... 47
SECTION 8.08. Confidentiality.................................................................................... 51
SECTION 8.09. Governing Law...................................................................................... 52
SECTION 8.10. Execution in Counterparts; Integration............................................................. 52
SECTION 8.11. Jurisdiction, Etc.................................................................................. 52
SECTION 8.12. Waiver of Jury Trial............................................................................... 52
SECTION 8.13. USA Patriot Act Notification....................................................................... 53
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SCHEDULES AND EXHIBITS
Schedules
Schedule I - List of Applicable Lending Offices
Schedule II - Letters of Credit
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 Associate 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 DTE ENERGY COMPANY, a Michigan
corporation (the "Borrower"), the banks, financial institutions and other
institutional lenders (the "Initial Lenders") listed on the signature pages
hereof, and CITIBANK, N.A. ("Citibank"), as Administrative Agent (the "Agent"),
and BARCLAYS BANK PLC and JPMORGAN CHASE BANK, 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 Citibank with its office at Xxx Xxxxx Xxx, Xxxxx 000, Xxx Xxxxxx,
Xxxxxxxx 00000, Account No. 00000000, Attention: Xxxx Xxxxxxxxx.
"Agents" means the Agent and each Co-Syndication Agent,
collectively.
"Aggregate Outstanding Credit Exposures" means, at any time, the
aggregate of the Outstanding Credit Exposures of all the Lenders.
"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, Citibank, as
Administrative Agent, and JPMorgan Chase Bank, N.A. and Barclays Bank PLC,
as Co-Syndication Agents, as the same may be amended, restated,
supplemented or otherwise modified from time to time.
"Applicable LC Fee Rate" means, as of any date, the percentage rate
per annum which is applicable at such time with respect to Facility LCs as
set forth in the Pricing Schedule.
"Applicable Lending Office" means, with respect to each Lender or
any LC Issuer, such Lender's or LC Issuer's Domestic Lending Office in the
case of a Base Rate Advance or the issuance of any Facility LC 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 the
Aggregate Outstanding Credit Exposures at such time as set forth in the
Pricing Schedule.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Agent, in substantially the form of Exhibit C hereto.
"Audited Statements" means the Consolidated balance sheets of the
Borrower, DECO and MichCon as at December 31, 2004, and the related
Consolidated statements of income and cash flows of the Borrower, DECO and
MichCon for the fiscal year then ended, accompanied by the opinion thereon
of the Borrower's, DECO's and MichCon's independent public accountants.
For the avoidance of doubt, the Audited Statements of the Borrower and
DECO shall mean such Audited Statements as are presented in the Borrower's
and DECO's Form 8-K, as applicable, dated August 3, 2005 and filed August
4, 2005 for the year ended December 31, 2004.
"Base Rate" means a fluctuating interest rate per annum in effect
from time to time, which rate per annum shall at all times be equal to the
highest of:
(a) the rate of interest established by Citibank in New York,
New York, from time to time, as Citibank's base rate;
(b) the sum (adjusted to the nearest 1/16 of 1% or, if there
is no nearest 1/16 of 1%, to the next higher 1/16 of 1%) of (i) 1/2
of 1% per annum, plus (ii) the rate obtained by dividing (A) the
latest three-week moving average of secondary market morning
offering rates in the United States for three-month certificates of
deposit of major United States money market banks, such three-week
moving average (adjusted to the basis of a year of 360 days) being
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determined weekly on each Monday (or, if such day is not a Business
Day, on the next succeeding Business Day) for the three-week period
ending on the previous Friday by Citibank on the basis of such rates
reported by certificate of deposit dealers to and published by the
Federal Reserve Bank of New York or, if such publication shall be
suspended or terminated, on the basis of quotations for such rates
received by Citibank from three New York certificate of deposit
dealers of recognized standing selected by Citibank, by (B) a
percentage equal to 100% minus the average of the daily percentages
specified during such three-week period by the Board of Governors of
the Federal Reserve System (or any successor) for determining the
maximum reserve requirement (including, but not limited to, any
emergency, supplemental or other marginal reserve requirement) for
Citibank with respect to liabilities consisting of or including
(among other liabilities) three-month U.S. dollar non-personal time
deposits in the United States, plus (iii) the average during such
three-week period of the annual assessment rates estimated by
Citibank for determining the then current annual assessment payable
by Citibank to the Federal Deposit Insurance Corporation (or any
successor) for insuring U.S. dollar deposits of Citibank 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.
"Collateral Shortfall Amount" means, as of any date of
determination, an amount in immediately available funds, which funds shall
be held in the Facility LC Collateral Account, equal to the difference of
(x) the amount of LC Obligations at such time, less (y) the amount on
deposit in the Facility LC Collateral Account at such time which is free
and clear of all rights and claims of third parties and has not been
applied against the Obligations.
"Commitment" means, for each Lender, the obligation of such Lender
to make Loans to, and participate in Facility LCs issued upon the
application of, the Borrower in
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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.
"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.
"Credit Extension" means the making of a Revolving Credit Advance or
the issuance, renewal, extension or increase of a Facility LC hereunder.
"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
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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 the Borrower.
"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
and JPMorgan Chase Bank, N.A., as Co-Syndication Agents, as the same may
be amended, restated, supplemented or otherwise modified from time to
time.
"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 or LC
Issuer, the office of such Lender or LC Issuer specified as its "Domestic
Lending Office" opposite its name on Schedule I hereto or, in the case of
a Lender, in the Assignment and Acceptance pursuant to which it became a
Lender, or such other office of such Lender or LC Issuer as such Lender or
LC Issuer may from time to time specify to the Borrower and the Agent.
"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
5
be continuing, the Borrower, such approval not to be unreasonably withheld
or delayed by either party; provided, however, that neither the Borrower
nor an Affiliate of the Borrower shall qualify as an Eligible Assignee.
"Enterprises" means DTE Enterprises, Inc., a Michigan corporation
wholly-owned by the Borrower.
"Environmental Action" means any action, suit, demand, demand
letter, claim, notice of non-compliance or violation, notice of liability
or potential liability, investigation, proceeding, consent order or
consent agreement relating in any way to any Environmental Law,
Environmental Permit or Hazardous Materials or arising from alleged injury
or threat of injury to 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
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withdrawal by the Borrower or any ERISA Affiliate from a Multiple Employer
Plan during a plan year for which it was a substantial employer, as
defined in Section 4001(a)(2) of ERISA; (f) the conditions for the
imposition of a lien under Section 302(f) of ERISA shall have been met
with respect to any Plan; (g) the adoption of an amendment to a Plan
requiring the provision of security to such Plan pursuant to Section 307
of ERISA; or (h) the institution by the PBGC of proceedings to terminate a
Plan pursuant to Section 4042 of ERISA, or the occurrence of any event or
condition described in Section 4042 of ERISA that constitutes grounds for
the termination of, or the appointment of a trustee to administer, a Plan.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as
in effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Eurodollar Lending Office"
opposite its name on Schedule I hereto or in the Assignment and Acceptance
pursuant to which it became a Lender (or, if no such office is specified,
its Domestic Lending Office), or such other office of such Lender as such
Lender may from time to time specify to the Borrower and the Agent.
"Eurodollar Rate" means, for any Interest Period for each Eurodollar
Rate Advance comprising part of the same Borrowing, an interest rate per
annum equal to the rate per annum obtained by dividing (a) the 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
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regulations issued from time to time by the Board of Governors of the
Federal Reserve System (or any successor) for determining the maximum
reserve requirement (including, without limitation, any emergency,
supplemental or other marginal reserve requirement) for a member bank of
the Federal Reserve System in New York City with respect to liabilities or
assets consisting of or including Eurocurrency Liabilities (or with
respect to any other category of liabilities that includes deposits by
reference to which the interest rate on Eurodollar Rate Advances is
determined) having a term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Excluded Hedging Debt" means all Debt arising under any Hedge
Agreement in respect of fluctuations in commodity prices.
"Facility Fee" has the meaning specified in Section 2.03(a).
"Facility LC" has the meaning specified in Section 2.16(a).
"Facility LC Application" has the meaning specified in Section
2.16(c).
"Facility LC Collateral Account" has the meaning specified in
Section 2.16(i).
"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.
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"Identified Reports on Form 8-K" means those certain reports of the
Borrower, DECO and MichCon on Form 8-K filed or furnished with the
Securities and Exchange Commission on (a) February 1, February 3, February
10, February 11 (two filings), February 22, February 25, March 10, April
8, April 27, April 28, May 2, May 3, May 10, June 14, June 16, June 28,
July 28 (two filings), July 29 (two filings), August 4 (two filings),
September 21, September 26, September 27, and October 5, 2005 with respect
to the Borrower, (b) February 10, February 11 (two filings), March 10,
April 8, April 27, April 28, May 2, June 14, July 12, July 28 (two
filings), July 29, August 4 (two filings) , September 21, September 27,
and October 5, 2005 with respect to DECO, and (c) 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 with respect to MichCon.
"Interest Period" means, for each Eurodollar Rate Advance comprising
part of the same Borrowing, the period commencing on the date of such
Eurodollar Rate Advance or the date of the Conversion of any Base Rate
Advance into such Eurodollar Rate Advance and ending on the last day of
the period selected by the Borrower pursuant to the provisions below and,
thereafter, with respect to Eurodollar Rate Advances, each subsequent
period commencing on the last day of the immediately preceding Interest
Period and ending on the last day of the period selected by the Borrower
pursuant to the provisions below. The duration of each such Interest
Period shall be one, two, three or six months, as the Borrower may, upon
notice received by the Agent not later than 11:00 A.M. (New York City
time) on the third Business Day prior to the first day of such Interest
Period, select; provided, however, that:
(i) the Borrower may not select any Interest Period that ends
after the 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.
9
"Junior Subordinated Debt" means (a) subordinated junior deferrable
interest debentures of the Borrower, DECO, Enterprises or MichCon, (b) the
related preferred securities, if applicable, of Subsidiaries of the
Borrower and (c) the related subordinated guarantees, if applicable, of
the Borrower, DECO, Enterprises or MichCon, in each case, from time to
time outstanding.
"LC Commitment" has the meaning specified in Section 2.16(a).
"LC Fee" has the meaning specified in Section 2.03(d).
"LC Issuer" means Barclays Bank PLC, Citibank, JPMorgan Chase Bank,
N.A. or The Bank of Nova Scotia (or, in each case, any subsidiary or
Affiliate thereof designated thereby) in its capacity as issuer of
Facility LCs hereunder.
"LC Obligations" means, at any time, the sum, without duplication,
of (i) the aggregate undrawn stated amount under all Facility LCs
outstanding at such time plus (ii) the aggregate unpaid amount at such
time of all Reimbursement Obligations.
"LC Payment Date" has the meaning specified in Section 2.16(d).
"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, the Facility LC Applications
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 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.
"MichCon" means Michigan Consolidated Gas Company, a Michigan
corporation, wholly owned (indirectly) by the Borrower.
"MichCon Credit Agreement" means that certain Five-Year Credit
Agreement dated as of October 17, 2005, by and among MichCon, the lenders
party thereto, JPMorgan Chase Bank, N.A., as Administrative Agent, and
Barclays Bank PLC and Citibank, as Co-Syndication Agents, as the same may
be amended, restated, supplemented or otherwise modified from time to
time.
10
"Modify" and "Modification" have the respective meanings specified
in Section 2.16(a).
"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.
"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; it being
understood that Securitization Bonds shall constitute Nonrecourse Debt for
all purposes of the Loan Documents, except to the extent (and only to the
extent) of any claims made against DECO in respect of its indemnification
obligations relating to such Securitization Bonds.
"Note" has the meaning specified in Section 2.17.
"Notice of Borrowing" has the meaning specified in Section 2.02(a).
"Obligations" means all unpaid principal of and accrued and unpaid
interest on Revolving Credit Advances, all Reimbursement Obligations, 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, any LC Issuer or any indemnified party arising under the Loan
Documents.
"Outstanding Credit Exposure" means, as to any Lender at any time,
the sum of (i) the aggregate principal amount of its Revolving Credit
Advances outstanding at such time, plus (ii) an amount equal to its Pro
Rata Share of the LC Obligations at such time.
"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
11
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, the Applicable LC Fee Rate
and the Applicable Utilization Fee Rate attached hereto identified as
such.
"Pro Rata Share" means, with respect to a Lender, a portion equal to
a fraction the numerator of which is such Lender's Commitment and the
denominator of which is the aggregate of all the Lenders' Commitments.
"Reference Banks" means Citibank, Barclays Bank PLC, JPMorgan Chase
Bank, N.A. and their respective successors.
"Register" has the meaning specified in Section 8.07(d).
"Reimbursement Obligations" means, at any time, the aggregate of all
obligations of the Borrower then outstanding under Section 2.16 to
reimburse the applicable LC Issuer for amounts paid by such LC Issuer in
respect of any one or more drawings under Facility LCs issued by such LC
Issuer.
"Required Lenders" means at any time Lenders owed more than fifty
percent (50%) of the Aggregate Outstanding Credit Exposures at such time,
or, if the Aggregate Outstanding Credit Exposures is zero, 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, DECO's and MichCon's Annual Reports 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
the Audited Statements of the Borrower, DECO and MichCon, respectively;
and
(ii) the Borrower's, DECO's and MichCon'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, DECO and MichCon,
respectively, and the Identified Reports on Form 8-K.
12
"Service" has the meaning specified in the definition of "Eurodollar
Rate".
"Securitization Bonds" means Debt of one or more Securitization
SPEs, issued pursuant to The Customer Choice and Electricity Reliability
Act, Act Xx. 000, Xxxxxx Xxxx xx Xxxxxxxx, 0000, as the same may be
amended from time to time.
"Securitization SPE" means an entity established or to be
established directly or indirectly by the Borrower for the purpose of
issuing Securitization Bonds and includes The Detroit Edison
Securitization Funding LLC, a limited liability company organized under
the laws of the State of Michigan.
"Significant Subsidiary" means (i) DECO, Enterprises and MichCon,
and (ii) any other Subsidiary of the Borrower (A) the total assets (after
intercompany eliminations) of which exceed 30% of the total assets of the
Borrower and its Subsidiaries or (B) the net worth of which exceeds 30% of
the Consolidated Net Worth, 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.
"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 the Borrower, the
lenders party thereto, Citibank, 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 the Borrower, 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
13
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 MichCon, the lenders party thereto, JPMorgan Chase Bank, N.A.
(successor by merger to Bank One, NA (Main Office-Chicago)), as
Administrative Agent, and Barclays Bank PLC and Citigroup Global Markets
Inc., as Co-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, DECO and MichCon, as at June 30, 2005, and
the related condensed Consolidated statements of income and cash flows of
the Borrower, DECO and MichCon 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.
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ARTICLE II: AMOUNTS AND TERMS OF THE REVOLVING CREDIT ADVANCES AND
THE FACILITY LCs
SECTION 2.01. Commitment. Each Lender severally agrees, on the terms
and conditions hereinafter set forth, to (i) 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 and (ii) participate in Facility LCs
issued upon the request of the Borrower from time to time; provided that, after
giving effect to the making of each such Revolving Credit Advance and the
issuance of each such Facility LC, such Lender's Outstanding Credit Exposure
shall not exceed its Commitment. Each Borrowing shall be in an aggregate amount
of $5,000,000 or an integral multiple of $1,000,000 in excess thereof and shall
consist of Revolving Credit Advances of the same Type made on the same day by
the Lenders ratably according to their respective Commitments. Within the limits
of each Lender's Commitment, the Borrower may borrow under this Section 2.01,
prepay pursuant to Section 2.09 and reborrow under this Section 2.01. Each LC
Issuer will issue Facility LCs hereunder on the terms and conditions set forth
in Section 2.16.
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 Borrowing
specifies is to be comprised of Eurodollar Rate Advances, the Borrower shall
indemnify each Lender against any loss, cost or expense incurred by such Lender
as a result of any failure to fulfill on or before the date
15
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
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 amount of (i) the
Aggregate Outstanding Credit Exposures hereunder and (ii) the "Aggregate
Outstanding Credit Exposures" 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
16
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 Credit Exposures on such date, payable in arrears
quarterly on the last day of each March, June, September and December, and on
the Termination Date.
(d) LC Fees. The Borrower shall pay to the Agent, for the account of the
Lenders ratably in accordance with their respective Pro Rata Shares, a per annum
letter of credit fee equal to the Applicable LC Fee Rate multiplied by the
average daily undrawn stated amount under such Facility LC, such fee to be
payable in arrears quarterly on the last day of each March, June, September and
December, and on the Termination Date (each such fee described in this sentence
an "LC Fee"). The Borrower shall also pay to the applicable LC Issuer for its
own account (x) a fronting fee in an amount and payable at such times as is
agreed upon between such LC Issuer and the Borrower, and (y) documentary and
processing charges in connection with the issuance or Modification of and draws
under Facility LCs in accordance with such LC Issuer's standard schedule for
such charges as in effect from time to time.
SECTION 2.04. Termination or Reduction of the Commitments; Increase
of the Commitments. (a) The Commitments shall be automatically terminated on the
Termination Date.
(b) The Borrower shall have the right, upon at least three Business Days'
notice to the Agent, to terminate in whole or reduce ratably in part the unused
portions of the respective Commitments of the Lenders, provided that each
partial reduction shall be in the aggregate amount of $5,000,000 or an integral
multiple of $1,000,000 in excess thereof. Once terminated, a Commitment or
portion thereof may not be reinstated.
(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 $925,000,000, minus the aggregate amount of any increases in
the "Commitments" under (and as defined in) the DECO Credit Agreement and the
MichCon 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, the Agent and the LC Issuers. 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, the
LC Issuers 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; provided,
17
however, that the consent of each of the LC Issuers shall be required to such
Lender Supplement (which consent may be given or withheld in the sole discretion
of the LC Issuers). 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 LC Issuers, 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 the
Aggregate Outstanding Credit Exposures 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 Credit Extensions. The Borrower shall
repay to the Agent for the ratable account of the Lenders on the Termination
Date the Aggregate Outstanding Credit Exposures 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:
(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, (x) 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 (y) the LC Fee shall be increased by 2% per annum, 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
18
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 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,
19
(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). 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, pay to the Agent the Collateral Shortfall Amount at such time, which
funds shall be held in the Facility LC Collateral Account, and prepay the
Aggregate Outstanding Credit Exposures (other than the undrawn stated amount
under all Facility LCs outstanding at such time) plus all interest thereon and
all other amounts payable hereunder or under the Notes, in the event that any
Person or two
20
or more Persons acting in concert shall have acquired beneficial ownership
(within the meaning of Rule 13d-3 of the Securities and Exchange Commission
under the Securities Exchange Act of 1934), directly or indirectly, of Voting
Stock of the Borrower (or other securities convertible into such Voting Stock)
representing 30% or more of the combined voting power of all Voting Stock of the
Borrower. If at any time subsequent to the foregoing payment of the Collateral
Shortfall Amount, the Agent determines that the Collateral Shortfall Amount at
such time is greater than zero, the Agent may make demand on the Borrower to
pay, and the Borrower will, forthwith upon such demand and without any further
notice or act, pay to the Agent the Collateral Shortfall Amount at such time,
which funds shall be deposited in the Facility LC Collateral Account. The Agent
may at any time or from time to time after funds are deposited in the Facility
LC Collateral Account, apply such funds to the payment of the Obligations and
any other amounts as shall from time to time have become due and payable by the
Borrower to the Lenders or the LC Issuers under the Loan Documents. Neither the
Borrower nor any Person claiming on behalf of or through the Borrower shall have
any right to withdraw any of the funds held in the Facility LC Collateral
Account pursuant to this Section 2.09(b); provided, however, that after all of
the Obligations have been indefeasibly paid in full and the aggregate
Commitments have been terminated, any funds remaining in the Facility LC
Collateral Account shall be returned by the Agent to the Borrower or paid to
whomever may be legally entitled thereto at such time.
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 or participating in any
Facility LC or to any LC Issuer of agreeing to issue any Facility LC hereunder
(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 or such LC Issuer (with a copy of such
demand to the Agent), pay to the Agent for the account of such Lender or such LC
Issuer, as applicable, additional amounts sufficient to compensate such Lender
or such LC Issuer, as applicable, for such increased cost. A certificate as to
the amount of such increased cost, submitted to the Borrower and the Agent by
such Lender or such LC Issuer, as applicable, shall be conclusive and binding
for all purposes, absent manifest error.
(b) If any Lender or LC Issuer 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 such LC Issuer or any corporation controlling such Lender or such LC
Issuer, as applicable, and that the amount of such capital is increased by or
based upon the existence of such Lender's commitment to lend hereunder or to
participate in Facility LCs hereunder and other commitments of this type or such
LC Issuer's issuance of Facility LCs hereunder, then, upon demand by such Lender
or such LC Issuer, as applicable, (with a copy of such demand to the Agent), the
Borrower shall pay to the Agent for the account of such Lender or such LC
Issuer, as applicable, from time to time as specified by such Lender or such LC
Issuer, as applicable, additional amounts sufficient to compensate such Lender
or such LC Issuer, as applicable, or such corporation in the light of such
circumstances, to the extent that such Lender or such LC Issuer, as applicable,
reasonably determines such increase in capital to be
21
allocable to the existence of such Lender's commitment to lend hereunder or to
participate in Facility LCs hereunder or such LC Issuer's agreement to issue
Facility LCs hereunder. A certificate as to such amounts submitted to the
Borrower and the Agent by such Lender or such LC Issuer, as applicable, 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 Outstanding Credit
Exposures 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, LC Fees or the Utilization Fee ratably (other than amounts
payable pursuant to Section 2.10, 2.13 or 8.04(c)) to the Lenders and the LC
Issuers, as applicable, for the account of their respective Applicable Lending
Offices, and like funds relating to the payment of any other amount payable to
any Lender or LC Issuer to such Lender or LC Issuer 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.
22
(b) The Borrower hereby authorizes each Lender and each LC Issuer, if and
to the extent payment owed to such Lender or LC Issuer is not made when due
hereunder or under the Note held by such Lender or LC Issuer, to charge from
time to time against any or all of the Borrower's accounts with such Lender or
LC Issuer 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, the LC Fee 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, the LC Fee or
Utilization Fee are payable. Each determination by the Agent of an interest rate
hereunder shall be conclusive and binding for all purposes, absent manifest
error.
(d) Whenever any payment hereunder or under the Notes shall be stated to
be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest, Facility Fee, the LC 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 or the LC Issuers 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 or LC Issuer, as applicable, on such due date an amount equal to the
amount then due such Lender or LC Issuer. If and to the extent the Borrower
shall not have so made such payment in full to the Agent, each Lender or LC
Issuer, as applicable, shall repay to the Agent forthwith on demand such amount
distributed to such Lender or LC Issuer together with interest thereon, for each
day from the date such amount is distributed to such Lender or LC Issuer until
the date such Lender or LC Issuer 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, each LC Issuer 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, such LC Issuer or the Agent
(as the case may be) is organized or any political subdivision thereof and (ii),
in the case of each Lender and each LC Issuer, by the jurisdiction of such
Lender's or such LC Issuer'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
23
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, any LC Issuer or the Agent, the 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, such
LC Issuer 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, each LC Issuer 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,
such LC Issuer 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
24
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 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, the LC Issuers 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 Outstanding Credit
Exposures 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 Outstanding Credit Exposures 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 Aggregate Outstanding Credit
Exposures obtained by all of the Lenders, such Lender shall
25
forthwith purchase from the other Lenders such participations in the Aggregate
Outstanding Credit Exposures owing to them as shall be necessary to cause such
purchasing Lender to share the excess payment ratably with each of them;
provided, however, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender, such purchase from each Lender
shall be rescinded and such Lender shall repay to the purchasing Lender the
purchase price to the extent of such recovery together with an amount equal to
such Lender's ratable share (according to the proportion of (i) the amount of
such Lender's required repayment to (ii) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. The Borrower
agrees that any Lender so purchasing a participation from another Lender
pursuant to this Section 2.14 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off) with respect
to such participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation.
SECTION 2.15. Use of Proceeds. The proceeds of the Revolving Credit
Advances shall be available and Facility LCs shall be issued hereunder (and the
Borrower agrees that it shall use such proceeds and Facility LCs) solely for
general corporate purposes, including commercial paper liquidity, of the
Borrower and its Subsidiaries.
SECTION 2.16. Facility LCs. (a) Issuance. Each LC Issuer hereby
agrees, on the terms and conditions set forth in this Agreement, to issue
standby letters of credit for the account of the Borrower and for the benefit of
the Borrower or any Subsidiary of the Borrower (each, a "Facility LC") and to
renew, extend, increase, decrease or otherwise modify each Facility LC
("Modify", and each such action a "Modification"), from time to time from and
including the date of this Agreement and prior to the Termination Date upon the
request of the Borrower; provided that immediately after each such Facility LC
is issued or Modified, (i) the aggregate amount of the outstanding LC
Obligations plus the aggregate amount, if any, by which the stated amount of all
outstanding Facility LCs may by their terms or the terms of any Facility LC
Applications be automatically increased shall not exceed $500,000,000 (the "LC
Commitment"), (ii) the Aggregate Outstanding Credit Exposures shall not exceed
the aggregate of all the Commitments and (iii) unless such LC Issuer shall
otherwise consent thereto, the aggregate amount of all outstanding Facility LCs
issued by such LC Issuer shall not exceed 25% of the LC Commitment. No Facility
LC shall have an expiry date later than the earlier of (x) the fifth Business
Day prior to the Termination Date and (y) one year after its issuance; provided
that any Facility LC with a one-year term may provide for the renewal thereof
for additional one-year periods (which shall in no event extend beyond the date
referenced in clause (x) above). Subject to the terms and conditions hereof
(other than the notice required pursuant to Section 2.16(c) below, which shall
be deemed satisfied by the attached Schedule II), from and after the Effective
Date, each of the letters of credit identified in Schedule II hereto and issued
for the account of the Borrower or for the account of any Subsidiary of the
Borrower shall be deemed to be Facility LCs issued pursuant to this Agreement,
and any reference in this Agreement to the "issuance" of a Facility LC (or
"issue" or other references to forms of such verb in this context) shall include
the deemed issuance provided hereby.
(b) Participations. Upon the issuance or Modification by any LC
Issuer of a Facility LC in accordance with this Section 2.16 (including, from
and after the Effective Date, each of the letters of credit identified in
Schedule II and deemed to be Facility LCs issued
26
pursuant to this Agreement), any LC Issuer shall be deemed, without further
action by any party hereto, to have unconditionally and irrevocably sold to each
Lender, and each Lender shall be deemed, without further action by any party
hereto, to have unconditionally and irrevocably purchased from any LC Issuer, a
participation in such Facility LC (and each Modification thereof) and the
related LC Obligations in proportion to its Pro Rata Share.
(c) Notice. Subject to Section 2.16(a), the Borrower shall give any
LC Issuer and the Agent notice prior to 11:00 a.m. (New York City time) at least
five Business Days prior to the proposed date of issuance or Modification of
each Facility LC, specifying the beneficiary, the proposed date of issuance (or
Modification) and the expiry date of such Facility LC, and describing the
proposed terms of such Facility LC and the nature of the transactions proposed
to be supported thereby. Upon receipt of such notice, the Agent shall promptly
notify each Lender of the contents thereof and of the amount of such Lender's
participation in such proposed Facility LC. The issuance or Modification by any
LC Issuer of any Facility LC shall, in addition to the conditions precedent set
forth in Article III (the satisfaction of which such LC Issuer shall have no
duty to ascertain), be subject to the conditions precedent that such Facility LC
shall be satisfactory to such LC Issuer and that the Borrower shall have
executed and delivered such application agreement and/or such other instruments
and agreements relating to such Facility LC as such LC Issuer shall have
reasonably requested (each, a "Facility LC Application"). In the event of any
conflict between the terms of this Agreement and the terms of any Facility LC
Application, the terms of this Agreement shall control.
(d) Administration; Reimbursement by Lenders. Upon receipt from the
beneficiary of any Facility LC of any demand for payment under such Facility LC,
the applicable LC Issuer shall notify the Agent and the Agent shall promptly
notify the Borrower and each other Lender as to the amount to be paid by such LC
Issuer as a result of such demand and the proposed payment date (the "LC Payment
Date"). The responsibility of such LC Issuer to the Borrower and each Lender
shall be only to determine that the documents (including each demand for
payment) delivered under each Facility LC in connection with such presentment
shall be in conformity in all material respects with such Facility LC. Each LC
Issuer shall endeavor to exercise the same care in the issuance and
administration of the Facility LCs issued by such LC Issuer as it does with
respect to letters of credit in which no participations are granted, it being
understood that each Lender shall be unconditionally and irrevocably liable
without regard to the occurrence of any Default or any condition precedent
whatsoever to reimburse such LC Issuer on demand for (i) such Lender's Pro Rata
Share of the amount of each payment made by such LC Issuer under each Facility
LC issued by such LC Issuer to the extent such amount is not reimbursed by the
Borrower pursuant to Section 2.16(e) below, plus (ii) interest on the foregoing
amount to be reimbursed by such Lender, for each day from the date of such LC
Issuer's demand for such reimbursement (or, if such demand is made after 11:00
a.m. (New York City time) on such date, from the next succeeding Business Day)
to the date on which such Lender pays the amount to be reimbursed by it, at a
rate of interest per annum equal to the Federal Funds Rate for the first three
days and, thereafter, at a rate of interest equal to the rate applicable to
Eurodollar Rate Advances.
(e) Reimbursement by Borrower. The Borrower shall be irrevocably and
unconditionally obligated to reimburse each LC Issuer on or before the
applicable LC Payment Date for any amounts to be paid by such LC Issuer upon any
drawing under any Facility LC
27
issued by such LC Issuer, without presentment, demand, protest or other
formalities of any kind; provided that neither the Borrower nor any Lender shall
hereby be precluded from asserting any claim for direct (but not consequential)
damages suffered by the Borrower or such Lender to the extent, but only to the
extent, caused by (i) the willful misconduct or gross negligence of such LC
Issuer in determining whether a request presented under any Facility LC issued
by it complied with the terms of such Facility LC or (ii) such LC Issuer's
failure to pay under any Facility LC issued by it after the presentation to it
of a request strictly complying with the terms and conditions of such Facility
LC. All such amounts paid by such LC Issuer and remaining unpaid by the Borrower
shall bear interest, payable on demand, for each day until paid at a rate per
annum equal to (x) the rate applicable to Base Rate Advances for such day if
such day falls on or before the applicable LC Payment Date and (y) the sum of 2%
plus the rate applicable to Base Rate Advances for such day if such day falls
after such LC Payment Date. Each LC Issuer will pay to each Lender ratably in
accordance with its Pro Rata Share all amounts received by it from the Borrower
for application in payment, in whole or in part, of the Reimbursement Obligation
in respect of any Facility LC issued by such LC Issuer, but only to the extent
such Lender has made payment to such LC Issuer in respect of such Facility LC
pursuant to Section 2.16(d). Subject to the terms and conditions of this
Agreement (including without limitation the submission of a Notice of Borrowing
in compliance with Section 2.02(a) and the satisfaction of the applicable
conditions precedent set forth in Section 3.02), the Borrower may request a
Revolving Credit Advance hereunder for the purpose of satisfying any
Reimbursement Obligation.
(f) Obligations Absolute. The Borrower's obligations under this
Section 2.16 shall be absolute and unconditional under any and all circumstances
and irrespective of any setoff, counterclaim or defense to payment which the
Borrower may have or have had against any LC Issuer, any Lender or any
beneficiary of a Facility LC. The Borrower further agrees with the LC Issuers
and the Lenders that the LC Issuers and the Lenders shall not be responsible
for, and the Borrower's Reimbursement Obligation in respect of any Facility LC
shall not be affected by, among other things, the validity or genuineness of
documents or of any endorsements thereon, even if such documents should in fact
prove to be in any or all respects invalid, fraudulent or forged, or any dispute
between or among the Borrower, any of its Affiliates, the beneficiary of any
Facility LC or any financing institution or other party to whom any Facility LC
may be transferred or any claims or defenses whatsoever of the Borrower or of
any of its Affiliates against the beneficiary of any Facility LC or any such
transferee. The LC Issuers shall not be liable for any error, omission,
interruption or delay in transmission, dispatch or delivery of any message or
advice, however transmitted, in connection with any Facility LC. The Borrower
agrees that any action taken or omitted by any LC Issuer or any Lender under or
in connection with each Facility LC and the related drafts and documents, if
done without gross negligence or willful misconduct, shall be binding upon the
Borrower and shall not put any LC Issuer or any Lender under any liability to
the Borrower. Nothing in this Section 2.16(f) is intended to limit the right of
the Borrower to make a claim against any LC Issuer for damages as contemplated
by the proviso to the first sentence of Section 2.16(e).
(g) Actions of LC Issuers. Each LC Issuer shall be entitled to rely,
and shall be fully protected in relying, upon any Facility LC, draft, writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, statement,
28
order or other document believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons, and upon advice and
statements of legal counsel, independent accountants and other experts selected
by such LC Issuer. Each LC Issuer shall be fully justified in failing or
refusing to take any action under this Agreement unless it shall first have
received such advice or concurrence of the Required Lenders as it reasonably
deems appropriate or it shall first be indemnified to its reasonable
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action.
Notwithstanding any other provision of this Section 2.16, each LC Issuer shall
in all cases be fully protected in acting, or in refraining from acting, under
this Agreement in accordance with a request of the Required Lenders, and such
request and any action taken or failure to act pursuant thereto shall be binding
upon the Lenders and any future holders of a participation in any Facility LC.
(h) Lenders' Indemnification. Each Lender shall, ratably in
accordance with its Pro Rata Share, indemnify each LC Issuer, its Affiliates and
their respective directors, officers, agents and employees (to the extent not
reimbursed by the Borrower) against any cost, expense (including reasonable
counsel fees and disbursements), claim, demand, action, loss or liability
(except such as result from such indemnitees' gross negligence or willful
misconduct or such LC Issuer's failure to pay under any Facility LC after the
presentation to it of a request strictly complying with the terms and conditions
of the Facility LC) that such indemnitees may suffer or incur in connection with
this Section 2.16 or any action taken or omitted by such indemnitees hereunder.
(i) Facility LC Collateral Account. The Borrower agrees that it
will, upon the request of the Agent or the Required Lenders and until the final
expiration date of any Facility LC and thereafter as long as any amount is
payable to any LC Issuer or the Lenders in respect of any Facility LC, maintain
a special collateral account pursuant to arrangements satisfactory to the Agent
(the "Facility LC Collateral Account") at the Agent's office at the address
specified pursuant to Section 8.02, in the name of the Borrower but under the
sole dominion and control of the Agent, for the benefit of the Lenders and in
which the Borrower shall have no interest other than as set forth in Section
2.09(b) and Section 6.01. The Borrower hereby pledges, assigns and grants to the
Agent, on behalf of and for the ratable benefit of the Lenders and any LC
Issuer, a security interest in all of the Borrower's right, title and interest
in and to all funds which may from time to time be on deposit in the Facility LC
Collateral Account to secure the prompt and complete payment and performance of
the Obligations. The Agent will invest any funds on deposit from time to time in
the Facility LC Collateral Account in certificates of deposit of the Agent
having a maturity not exceeding 30 days. Nothing in this Section 2.16(i) shall
either obligate the Agent to require the Borrower to deposit any funds in the
Facility LC Collateral Account or limit the right of the Agent to release any
funds held in the Facility LC Collateral Account in each case other than as
required by Section 2.09(b) or Section 6.01.
(j) Rights as a Lender. In its capacity as a Lender, each LC Issuer
shall have the same rights and obligations as any other Lender.
SECTION 2.17. Noteless Agreement; Evidence of Indebtedness.
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(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 Credit Extension 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 Credit Extension 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, (v) the original stated amount of each
Facility LC and the amount of LC Obligations outstanding at any time, and (vi)
all other appropriate debits and credits as provided in this Agreement,
including, without limitation, all fees, charges, expenses and interest.
(c) The entries maintained in the accounts maintained pursuant to clauses
(a) and (b) above shall be prima facie evidence of the existence and amounts of
the obligations hereunder and under the Notes therein recorded; provided,
however, that the failure of the Agent or any Lender to maintain such accounts
or any error therein shall not in any manner affect the obligation of the
Borrower to repay such obligations in accordance with their terms.
(d) Any Lender may request that its Revolving Credit Advances be evidenced
by a promissory note representing its Revolving Credit Advances substantially in
the form of Exhibit A (each, a "Note"). In such event, the Borrower shall
prepare, execute and deliver to such Lender such Note payable to the order of
such Lender. Thereafter, the Revolving Credit Advances evidenced by each such
Note and interest thereon shall at all times (including after any assignment
pursuant to Section 8.07) be represented by one or more Notes payable to the
order of the payee named therein or any assignee pursuant to Section 8.07,
except to the extent that any such Lender or assignee subsequently returns any
such Note for cancellation and requests that such Revolving Credit Advances once
again be evidenced as described in clauses (a) and (b) above.
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
30
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 Credit
Exposures 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 CREDIT EXTENSIONS
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.
(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.
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(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 Associate
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 hereto or Schedule II to the Amended and Restated Five-Year
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 Credit Extension. The
obligation of each Lender or LC Issuer, as the case may be, to make a Credit
Extension shall be subject to the conditions precedent that the Effective Date
shall have occurred and on the date of such Credit Extension: (a) the following
statements shall be true (and each of the giving of the applicable Notice of
Borrowing, the acceptance by the Borrower of the proceeds of such Borrowing and
the request for the issuance, renewal, extension or increase of any Facility LC
hereunder shall constitute a representation and warranty by the Borrower that on
the date of such Credit Extension such statements are true):
(i) the representations and warranties contained in Section 4.01 are
correct on and as of the date of such Credit Extension, before and after
giving effect to such Credit Extension 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
Public Utility Holding Company Act of 1935 on February 8, 2006, Section
4.01(o),
(ii) after giving effect to the application of the proceeds of all
Credit Extensions 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
32
Credit Extension 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 Credit Extension 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 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, DECO and MichCon and the
Unaudited Statements of the Borrower, DECO and MichCon, copies of each of which
have been furnished to each Lender, fairly present, subject in the case of
Unaudited Statements to normal year-end
33
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.
(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
34
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 Credit Extension 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 Credit
Extension 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 Credit Extension 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 exempt from being required to seek approval to perform
its obligations under the Loan Documents pursuant to Rule 2 of the Rules and
Regulations promulgated pursuant to the Public Utility Holding Company Act of
1935, as amended.
ARTICLE V: COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Outstanding
Credit Exposure shall remain unpaid or any Lender shall have any Commitment
hereunder, the Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each of its Subsidiaries
to comply 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
35
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:
(i) as soon as available and in any event within 65 days after the
end of each of the first three quarters of each fiscal year of the
Borrower, Consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as of the end of such quarter and Consolidated statements of
income and cash flows of the Borrower and its Subsidiaries for the period
commencing at the end of the previous fiscal year and ending with the end
of such quarter;
(ii) as soon as available and in any event within 115 days after the
end of each fiscal year of the Borrower, a copy of the annual report to
Shareholders for such year for the Borrower and its Consolidated
Subsidiaries, containing the Consolidated balance sheet of the Borrower
and its Consolidated Subsidiaries as of the end of such fiscal year and
Consolidated statements of income and cash flows of the Borrower and its
Subsidiaries for such fiscal year, in each case accompanied by an opinion
by Deloitte & Touche LLP or 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;
36
(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; 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 Borrower's website 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-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 Outstanding Credit Exposure shall remain unpaid or
any Lender shall have any Commitment hereunder, the Borrower will not:
(a) Liens, Etc. Create or suffer to exist, or permit any Significant
Subsidiary to create or suffer to exist, any Lien on or with respect to any
shares of any class of equity securities (including, without limitation, Voting
Stock) of any Significant Subsidiary, whether such shares are now owned or
hereafter acquired.
(b) Debt. Create, incur, assume or suffer to exist any Debt except (i)
Debt that is expressly or effectively pari passu with or expressly subordinated
to the Debt of the Borrower hereunder, (ii) Nonrecourse Debt or (iii) other Debt
incurred in the ordinary course of the Borrower's business up to an aggregate
amount of $50,000,000.
(c) Mergers, Etc. Merge or consolidate with or into, or convey, transfer,
lease or otherwise dispose of (whether in one transaction or in a series of
transactions) all or substantially all of its assets (whether now owned or
hereafter acquired) to, any Person, or permit any Significant Subsidiary to do
so, except that (i) any Significant Subsidiary may merge or
37
consolidate with or into any other Significant Subsidiary, (ii) any Significant
Subsidiary may merge into or dispose of assets to the Borrower, and (iii) the
Borrower may merge or consolidate with or into any other Person so long as the
Borrower shall be the surviving entity and has, after giving effect to such
merger or consolidation, senior unsecured Debt outstanding rated at least BBB-
by S&P and Baa3 by Xxxxx'x; provided, in each case, that no Default shall have
occurred and be continuing at the time of such proposed transaction or would
result therefrom.
(d) Change in Nature of Business. Make, or permit any of its Significant
Subsidiaries (including Enterprises and MichCon) to make, any material change in
the nature of its business as carried on the date hereof, other than as
disclosed or contemplated in the SEC Reports.
(e) Accounting Changes. Make or permit 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 Reimbursement Obligation within one Business Day after the same becomes due
and payable; or the Borrower shall fail to pay any interest on any Outstanding
Credit Exposure 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
(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
38
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) The Borrower shall at any time cease to hold directly or indirectly
100% of the Voting Stock of DECO and MichCon; 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 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
39
(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 and each LC Issuer to make Credit Extensions to be
terminated, whereupon the same shall forthwith terminate, (ii) shall at the
request, or may with the consent, of the Required Lenders, by notice to the
Borrower, declare the Aggregate Outstanding Credit Exposures (other than the
undrawn stated amount under all Facility LCs outstanding at such time), all
interest thereon and all other amounts payable under this Agreement to be
forthwith due and payable, whereupon the Aggregate Outstanding Credit Exposures
(other than the undrawn stated amount under all Facility LCs outstanding at such
time), 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 and (iii) shall at the
request, or may with the consent, of the Required Lenders upon notice to the
Borrower and in addition to the continuing right to demand payment of all
amounts payable under this Agreement, make demand on the Borrower to pay, and
the Borrower will, forthwith upon such demand and without any further notice or
act, pay to the Agent the Collateral Shortfall Amount, which funds shall be
deposited in the Facility LC Collateral Account; 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
and each LC Issuer to make Credit Extensions shall automatically be terminated,
(B) the Aggregate Outstanding Credit Exposures (other than the undrawn stated
amount under all Facility LCs outstanding at such time), 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, and (C) the Borrower shall pay to the Agent
the Collateral Shortfall Amount, which funds shall be held in the Facility LC
Collateral Account. If at any time while any Default is continuing, the Agent
determines that the Collateral Shortfall Amount at such time is greater than
zero, the Agent may make demand on the Borrower to pay, and the Borrower will,
forthwith upon such demand and without any further notice or act, pay to the
Agent the Collateral Shortfall Amount, which funds shall be deposited in the
Facility LC Collateral Account. The Agent may at any time or from time to time
after funds are deposited in the Facility LC Collateral Account, apply such
funds to the payment of the Obligations and any other amounts as shall from time
to time have become due and payable by the Borrower to the Lenders or the LC
Issuers under the Loan Documents. At any time while any Default is continuing,
neither the Borrower nor any Person claiming on behalf of or through the
Borrower shall have any right to withdraw any of the funds held in the Facility
LC Collateral Account. After all of the Obligations have been indefeasibly paid
in full and the aggregate Commitments have been terminated, any funds remaining
in the Facility LC Collateral Account shall be returned by the Agent to the
Borrower or paid to whomever may be legally entitled thereto at such time.
40
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
Outstanding Credit Exposures), 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 Outstanding Credit Exposures;
provided, however, that the Agent shall not be required to take any action that
exposes the Agent to personal liability or that is contrary to this Agreement or
applicable law. The Agent agrees to give to each Lender prompt notice of each
notice given to it by the Borrower pursuant to the terms of this Agreement.
SECTION 7.02. Agent's Reliance, Etc. Neither the Agent nor any of
its directors, officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection with this
Agreement, except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, the Agent: (i) may treat
the payee in respect of any Outstanding Credit Exposure 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 Outstanding Credit Exposure,
as assignor, and an Eligible Assignee, as assignee, as provided in Section 8.07;
(ii) may consult with legal counsel (including counsel for the Borrower),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (iii) makes
no warranty or representation to any Lender and shall not be responsible to any
Lender for any statements, warranties or representations (whether written or
oral) made in or in connection with this Agreement; (iv) shall not have any duty
to ascertain or to inquire as to the performance or observance of any of the
terms, covenants or conditions of this Agreement on the part of the Borrower or
to inspect the property (including the books and records) of the Borrower; (v)
shall not be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of, or the
perfection or priority of any lien or security interest created or purported to
be created under or in connection with, any Loan Document or any other
instrument or document furnished pursuant hereto; and (vi) shall incur no
liability under or in respect of this Agreement by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telecopier,
telegram or telex) believed by it to be genuine and signed or sent by the proper
party or parties.
SECTION 7.03. Citibank and Affiliates. With respect to its
Commitment, the Credit Extensions made by it and any Note issued to it, Citibank
shall have the same rights and powers under this Agreement as any other Lender
and may exercise the same as though it were not the Agent; and the term "Lender"
or "Lenders" shall, unless otherwise expressly indicated, include Citibank in
its individual capacity. Citibank and its Affiliates may accept deposits from,
lend money to, act as trustee under indentures of, accept investment banking
41
engagements from and generally engage in any kind of business with, the
Borrower, any of its Subsidiaries and any Person who may do business with or own
securities of the Borrower or any such Subsidiary, all as if Citibank were not
the Agent and without any duty to account therefor to the Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender acknowledges that
it has, independently and without reliance upon the Agent or any other Lender
and based on the financial statements referred to in Section 4.01 and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the Agent or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.
SECTION 7.05. Indemnification. The Lenders agree to indemnify the
Agent (to the extent not reimbursed by the Borrower), ratably according to the
respective principal amounts of their respective Outstanding Credit Exposures
(or if the Aggregate Outstanding Credit Exposures are zero or if any Credit
Extensions 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
42
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
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 Outstanding Credit
Exposures or any fees or other amounts payable hereunder, (d) postpone any date
fixed for any payment of principal of, or interest on, the Outstanding Credit
Exposures or any fees or other amounts payable hereunder, (e) change the
percentage of the Commitments or of the aggregate unpaid principal amount of the
Outstanding Credit Exposures, or the number of Lenders, that shall be required
for the Lenders or any of them to take any action hereunder, (f) extend the
expiry date of any Facility LC to a date after the Termination Date or forgive
all or any portion of any Reimbursement Obligation, (g) 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 (h) 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 amendment, waiver or consent shall, unless in writing and signed by the
applicable LC Issuer in addition to the Lenders required above to take such
action, affect the rights and duties of such LC Issuer under this Agreement or
any Facility LC; 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 LC Issuer or any
Lender, at its Domestic Lending Office; and if to the Agent, at its address at
Xxx Xxxxx Xxx, Xxxxx 000, Xxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxxx Xxxxxxxxx,
with a copy to J. Xxxxxxxx XxXxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
43
10013; or, as to the Borrower or the Agent, at such other address as shall be
designated by such party in a written notice to the other parties and, as to
each other party, at such other address as shall be designated by such party in
a written notice to the Borrower and the Agent. All such notices and
communications shall, when mailed 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 Credit Extension (including any election of an
interest rate or Interest Period relating thereto), (ii) relates to the payment
of any principal or other amount due 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 Credit Extension
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
xxxxxxxx.x.xxxxxxxxxxxxx@xxxxxxxxx.xxx, or such other 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
44
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) CITIBANK DOES NOT
WARRANT THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS, OR THE 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 CITIBANK IN CONNECTION WITH THE
COMMUNICATIONS OR THE PLATFORM.
(v) This clause (b) shall terminate on the date that neither
Citibank 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, each LC Issuer 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,
45
each LC Issuer 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, each LC Issuer 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 Facility LC, any of the transactions
contemplated herein or therein or the actual or proposed use of the proceeds of
the Credit Extensions or (ii) the actual or alleged presence of Hazardous
Materials on any property of the Borrower or any of its Subsidiaries or any
Environmental Action relating in any way to the Borrower or any of its
Subsidiaries, in each case whether or not such investigation, litigation or
proceeding is brought by the Borrower, its directors, shareholders or creditors
or an Indemnified Party or any other Person or any Indemnified Party is
otherwise a party thereto and whether or not the transactions contemplated
hereby are consummated, except to the extent such claim, damage, loss, liability
or expense is found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party's gross negligence or
willful misconduct; provided that upon receipt of notice of any such matter by a
representative of the Agent, any LC Issuer or any Lender, as applicable, having
primary responsibility for the relationship between the Borrower and the Agent,
such LC Issuer or such Lender, as applicable, the Agent, such LC Issuer 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 LC Issuer, 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 Facility
LC, any of the transactions contemplated herein or therein or the actual or
proposed use of the proceeds of the Credit Extensions.
(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 Credit Extension.
(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
46
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 Aggregate Outstanding Credit Exposures due and payable pursuant to
the provisions of Section 6.01, each Lender, each LC Issuer 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, such LC Issuer 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 or such LC Issuer, whether or not
such Lender or such LC Issuer shall have made any demand under this Agreement or
such Note and although such obligations may be unmatured. Each Lender and each
LC Issuer agrees promptly to notify the Borrower after any such set-off and
application, provided that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of each Lender, each LC
Issuer and their respective Affiliates under this Section are in addition to
other rights and remedies (including, without limitation, other rights of
set-off) that such Lender, such LC Issuer and their respective 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, each LC Issuer 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)), (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)), and (iii) with the prior consent of the LC Issuers (which consent may be
given or withheld in the sole discretion of the LC Issuers 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 Outstanding Credit Exposures 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", "Outstanding Credit Exposures" owed to it and any "Note" or
"Notes" held by it under (and as
47
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).
(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.
48
(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 Outstanding Credit Exposure owing to, each Lender from time
to time (the "Register"). The entries in the Register shall be conclusive and
binding for all purposes, absent manifest error, and the Borrower, the Agent and
the Lenders may treat each Person whose name is recorded in the Register as a
Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
(e) Each Lender may sell participations to one or more banks or other
entities (other than the Borrower or any of its Affiliates) in or to all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment, the Outstanding Credit Exposure
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 Credit
Extensions 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 Credit Extensions 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 Aggregate Outstanding Credit Exposures 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
49
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 Outstanding
Credit Exposure 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 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 or to participate in
any Facility LC pursuant to this Agreement; provided that (i) nothing herein
shall constitute a commitment by any SPV to make any Revolving Credit Advance or
to participate in any Facility LC issued hereunder, (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 and the participation of an SPV in any Facility LC issued hereunder
shall utilize the Commitment of the Designating Lender to the same extent, and
as if, such Revolving Credit Advance or participation in such Facility LC 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 Credit
Extension 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
50
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
Credit Extensions 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 Credit Extensions 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 Credit Extensions 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 Credit Extensions to the Borrower hereunder.
Notwithstanding the foregoing, the Designating Lender unconditionally agrees to
indemnify the Borrower, the Agent and each Lender against all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may be incurred
by or asserted against the Borrower, the Agent or such Lender, as the case may
be, in any way relating to or arising as a consequence of any such forbearance
or delay in the initiation of any such proceeding against its SPV.
(k) In addition, notwithstanding anything to the contrary contained in
subsection 8.07(h), (i), (j) or (k) or otherwise in this Agreement, any SPV may
(i) at any time and without paying any processing fee therefor, assign or
participate all or a portion of its interest in any Outstanding Credit Exposure
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 Outstanding Credit Exposure and (ii) disclose on a
confidential basis any non-public information relating to its Outstanding Credit
Exposure 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 LC Issuer
or Lender shall disclose any Confidential Information to any other Person
without the consent of the Borrower, other than (a) to the Agent's, such LC
Issuer'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,
such LC Issuer or such Lender, (d) as requested or required by any state,
federal or
51
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 such LC Issuer's or
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 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,
the LC Issuers 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, any LC Issuer or any Lender in the negotiation,
administration, performance or enforcement thereof.
52
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
53
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
DTE ENERGY COMPANY
By _____________________________________________
Name:
Title:
Borrower's FEIN: 00-0000000
Signature Page to
DTE Energy Company Five-Year Credit Agreement
Lenders
CITIBANK, N.A., as Administrative Agent, as a
Lender and as an LC Issuer
By _____________________________________________
Name:
Title:
JPMORGAN CHASE BANK, N.A., as Co-Syndication
Agent, as a Lender and as an LC Issuer
By _____________________________________________
Name:
Title:
BARCLAYS BANK PLC, as Co-Syndication Agent, as
a Lender and as an LC Issuer
By _____________________________________________
Name:
Title:
Signature Page to
DTE Energy Company Five-Year Credit Agreement
KEYBANK NATIONAL ASSOCIATION, as
Co-Documentation Agent and as a Lender
By _____________________________________________
Name:
Title:
Signature Page to
DTE Energy Company Five-Year Credit Agreement
THE ROYAL BANK OF SCOTLAND plc, as
Co-Documentation Agent and as a Lender
By _____________________________________________
Name:
Title:
Signature Page to
DTE Energy Company Five-Year Credit Agreement
BANK OF AMERICA, N.A., as a Lender
By _____________________________________________
Name:
Title:
Signature Page to
DTE Energy Company Five-Year Credit Agreement
BNP PARIBAS, as a Lender
By __________________________________
Name:
Title:
By __________________________________
Name:
Title:
Signature Page to
DTE Energy Company Five-Year Credit Agreement
COMERICA BANK, as a Lender
By __________________________________
Name:
Title:
Signature Page to
DTE Energy Company Five-Year Credit Agreement
THE BANK OF NOVA SCOTIA, as a Lender
and as an LC Issuer
By __________________________________
Name:
Title:
By __________________________________
Name:
Title:
Signature Page to
DTE Energy Company Five-Year Credit Agreement
UBS LOAN FINANCE LLC, as a Lender
By __________________________________
Name:
Title:
By __________________________________
Name:
Title:
Signature Page to
DTE Energy Company Five-Year Credit Agreement
WACHOVIA BANK, N.A., as a Lender
By __________________________________
Name:
Title:
Signature Page to
DTE Energy Company Five-Year Credit Agreement
THE BANK OF NEW YORK, as a Lender
By __________________________________
Name:
Title:
Signature Page to
DTE Energy Company Five-Year Credit Agreement
UNION BANK OF CALIFORNIA, N.A., as a Lender
By __________________________________
Name:
Title:
Signature Page to
DTE Energy Company Five-Year Credit Agreement
CREDIT SUISSE, CAYMAN ISLANDS BRANCH,
as a Lender
By __________________________________
Name:
Title:
By __________________________________
Name:
Title:
Signature Page to
DTE Energy Company Five-Year Credit Agreement
DEUTSCHE BANK AG NEW YORK BRANCH, as a Lender
By __________________________________
Name:
Title:
By __________________________________
Name:
Title:
Signature Page to
DTE Energy Company Five-Year Credit Agreement
FIFTH THIRD BANK, A MICHIGAN
BANKING CORPORATION, as a Lender
By __________________________________
Name:
Title:
Signature Page to
DTE Energy Company Five-Year Credit Agreement
UFJ BANK LIMITED, as a Lender
By __________________________________
Name:
Title:
Signature Page to
DTE Energy Company Five-Year Credit Agreement
MELLON BANK, N.A., as a Lender
By __________________________________
Name:
Title:
Signature Page to
DTE Energy Company Five-Year Credit Agreement
LASALLE BANK MIDWEST NATIONAL
ASSOCIATION, as a Lender
By __________________________________
Name:
Title:
Signature Page to
DTE Energy Company Five-Year Credit Agreement
MIZUHO CORPORATE BANK, LTD., as a Lender
By __________________________________
Name:
Title:
Signature Page to
DTE Energy Company Five-Year Credit Agreement
XXXXXX XXXXXXX BANK, as a Lender
By __________________________________
Name:
Title:
Signature Page to
DTE Energy Company Five-Year Credit Agreement
THE NORTHERN TRUST COMPANY, as a Lender
By __________________________________
Name:
Title:
Signature Page to
DTE Energy Company Five-Year Credit Agreement
SCHEDULE I
DTE ENERGY COMPANY
APPLICABLE LENDING OFFICES
NAME OF INITIAL LENDER DOMESTIC LENDING OFFICE EURODOLLAR LENDING OFFICE COMMITMENT
---------------------- ----------------------- ------------------------- ----------
Citibank, N.A. 000 Xxxxxxxxx Xx. 388 Greenwich St., $57,228,970.00
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
Barclays Bank PLC 000 Xxxx Xxxxxx Same as Domestic Lending Office $57,228,970.00
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxx/Xxxxx Xxxxxx
Telecopier: (000) 000-0000
JPMorgan Chase Bank, N.A. 0000 Xxxxxx, 00xx Xxxxx Same as Domestic Lending Xxxxxx x00,000,000.00
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxx
Telephone: (000)-000-0000
Facsimile: (000)-000-0000
KeyBank National Association Mailcode: OH-01-27-0623 Same as Domestic Lending Office $38,723,795.00
000 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 Xxxxxx x00,000,000.00
X.X., XX 00000
Attention: Xxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Bank of America, N.A. 000 Xxxx Xxxxxx Same as Domestic Lending Office $40,864,865.00
Xxxxxx, XX 00000
Attention: Xxxxxxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
BNP Paribas 000 Xxxxxxx Xxxxxx Same as Domestic Lending Office $38,723,795.00
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxxx Xxxxxxx
Telecopier: (000) 000-0000
Comerica Bank 000 Xxxxxxxx Xxx XX 0000 Same as Domestic Lending Office $38,723,795.00
Xxxxxxx, XX 00000
Attention: Xxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
The Bank of Xxxx Xxxxxx 0 Xxxxxxx Xxxxx Same as Domestic Lending Office $38,723,795.00
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xx / Xxxxxx Xxxxx
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 Office $38,723,795.00
Xxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx
Telecopier: (000) 000-0000
Wachovia Bank, N.A. 000 X. Xxxxxxx Xxxxxx Same as Domestic Lending Xxxxxx x00,000,000.00
0xx Xxxxx
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 Office $34,268,845.00
Xxx Xxxx, XX 00000
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 Office $30,841,960.00
000 Xxxxx Xxxxxxx Xx.,
00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx, VP
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Credit Suisse, Cayman Islands Branch 00 Xxxxxxx Xxxxxx Same as Domestic Lending Office $23,988,191.00
Xxx Xxxx, XX 00000
Attention: Xxxxx Xx
Telecopier: (000) 000-0000
Deutsche Bank AG New York Branch 00 Xxxx Xxxxxx, 00xx Xxxxx Same as Domestic Lending Office $23,988,191.00
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxx
Telecopier: (000) 000-0000
Fifth Third Bank, a Michigan Banking c/o Madisonville Operations Center Same as Domestic Lending Office $20,561,307.00
Corporation MD 1M0C2B
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxx Xxxxxxx
Telecopier: (000) 000-0000
UFJ Bank Limited 00 Xxxx 00xx Xxxxxx Same as Domestic Lending Office $17,134,421.00
Xxx Xxxx, XX 00000
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 Office $13,707,538.00
Xxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxx
Telecopier: (000) 000-0000
LaSalle Bank Midwest N.A. 0000 X. Xxx Xxxxxx Xxxx Same as Domestic Lending Office $8,567,211.00
MO900-290
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 Office $ 8,567,211.00
Xxxxxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Xxxxxx Xxxxxxx Bank 0000 Xxxx Xxxx Xxxxxxxxx Same as Domestic Lending Office $ 8,567,211.00
Xxxxx 000 X
Xxxx Xxxxxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Telecopier: (000) 000-0000
The Northern Trust Company 00 Xxxxx XxXxxxx Xxxxxx Same as Domestic Lending Office $ 3,426,883.00
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
TOTAL $675,000,000.00
SCHEDULE II
LETTERS OF CREDIT
LC NUMBER APPLICANT AMOUNT EXPIRATION DATE BENEFICIARY
--------- --------- ------ ----------------- -----------
836269 The Detroit Edison Company 1,800,000.00 05/01/06 The Travelers Insurance Co.
SB00372 DTE ENERGY Company 4,000,000.00 11/30/05 MASSACHUSETTS ELECTRIC COMPANY
SB00382 DTE ENERGY Company 275,000.00 12/31/05 ANDALEX RESOURCES, INC.
SB00069 DTE Energy Company 8,135,212.13 04/16/06 X.X. Xxxxxx Trust Company
SB00216 DTE ENERGY Company on behalf of CoENERGY TRADING CO 46,000,000.00 12/18/05 Select Energy, Inc.
SB00334 DTE ENERGY Company on behalf of CoENERGY TRADING CO 55,000,000.00 11/26/05 BNP PARIBAS XXX XXXX XXXXXX
XX00000 DTE ENERGY Company on behalf of CoENERGY TRADING CO 100,000,000.00 11/26/05 FIMAT INTERNATIONAL BANQUE S.A.
(UK BRANCH)
SB00333 DTE ENERGY Company on behalf of DTE ENERGY TRADING 2,500,000.00 11/12/05 STRATEGIC ENERGY
SB00339 DTE ENERGY Company on behalf of DTE ENERGY TRADING 5,000,000.00 12/03/05 NEW ENGLAND POWER POOL (NEPOOL)
SB00345 DTE Energy Company on behalf of DTE ENERGY TRADING 15,000,000.00 12/20/05 PSEG Energy Resources and Trade LLC
SB00351 DTE ENERGY Company on behalf of DTE ENERGY TRADING 5,022,000.00 01/30/06 Kentucky Utilities Company
PRICING SCHEDULE
LEVEL I STATUS LEVEL II STATUS LEVEL III STATUS LEVEL IV STATUS LEVEL V STATUS LEVEL VI 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 LC Fee 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 issued by Xxxxx'x
and then in effect with respect to the Borrower's senior unsecured long-term
debt securities without third-party credit enhancement.
"S&P Rating" means, at any time, the rating issued by S&P and then
in effect with respect to the Borrower's senior unsecured long-term debt
securities without third-party credit enhancement.
"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, the Applicable LC
Fee Rate 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, DTE ENERGY COMPANY, a Michigan
corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
_________________________ (the "Lender") for the account of its Applicable
Lending Office on the 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 Citibank, 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 Citibank, N.A., as Agent, at Xxx Xxxxx Xxx, Xxxxx
000, Xxx Xxxxxx, Xxxxxxxx 00000, Account No. 00000000, Attention: Xxxx
Xxxxxxxxx, in same day funds. Each Revolving Credit Advance owing to the Lender
by the Borrower pursuant to the Credit Agreement, and all payments made on
account of principal thereof, shall be recorded by the Lender and, prior to any
transfer hereof, endorsed on the grid attached hereto which is part of this
Promissory Note.
This Promissory Note is one of the Notes referred to in, and is
entitled to the benefits of, the Credit Agreement. The Credit Agreement, among
other things, (i) provides for the making of Revolving Credit Advances by the
Lender to the Borrower from time to time in an aggregate amount not to exceed at
any time outstanding the U.S. dollar amount first above mentioned, the
indebtedness of the Borrower resulting from each such Revolving Credit Advance
being evidenced by this Promissory Note, and (ii) contains provisions for
acceleration of the maturity hereof upon the happening of certain stated events
and also for prepayments on account of principal hereof prior to the maturity
hereof upon the terms and conditions therein specified.
DTE ENERGY COMPANY
By ________________________________
Title:
ADVANCES AND PAYMENTS OF PRINCIPAL
AMOUNT OF AMOUNT OF PRINCIPAL UNPAID PRINCIPAL
DATE ADVANCE PAID OR PREPAID BALANCE NOTATION MADE BY
---- --------- ------------------- ---------------- ----------------
____ _________ ___________________ ________________ ________________
____ _________ ___________________ ________________ ________________
____ _________ ___________________ ________________ ________________
____ _________ ___________________ ________________ ________________
____ _________ ___________________ ________________ ________________
____ _________ ___________________ ________________ ________________
____ _________ ___________________ ________________ ________________
____ _________ ___________________ ________________ ________________
____ _________ ___________________ ________________ ________________
____ _________ ___________________ ________________ ________________
____ _________ ___________________ ________________ ________________
____ _________ ___________________ ________________ ________________
____ _________ ___________________ ________________ ________________
____ _________ ___________________ ________________ ________________
____ _________ ___________________ ________________ ________________
____ _________ ___________________ ________________ ________________
____ _________ ___________________ ________________ ________________
____ _________ ___________________ ________________ ________________
EXHIBIT B - FORM OF NOTICE OF BORROWING
Citibank, N.A., as Agent for the Lenders parties
to the Credit Agreement referred to below
Xxx Xxxxx Xxx, Xxxxx 000
Xxx Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxx Xxxxx-Xxxxxxxx
[Date]
Ladies and Gentlemen:
The undersigned, DTE ENERGY 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
Citibank, N.A., as Agent for said Lenders, and hereby gives you notice,
irrevocably, pursuant to Section 2.02 of the Credit Agreement that the
undersigned hereby requests a Borrowing under the Credit Agreement, and in that
connection sets forth below the information relating to such Borrowing (the
"Proposed Borrowing") as required by Section 2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is _______________,
____.
(ii) The Type of Advances comprising the Proposed Borrowing is [Base
Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed Borrowing is
$_______________.
(iv) [The initial Interest Period for each Eurodollar Rate Advance
made as part of the Proposed Borrowing is _____ month[s].]
(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 Public Utility Holding Company Act of 1935 on February 8,
2006, Section 4.01(o) of the Credit Agreement;
(ii) after giving effect to the application of the proceeds of all
Credit Extensions 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 Credit Extension 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,
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 DTE Energy
Company, a Michigan corporation (the "Borrower"), the Lenders (as defined in
each of the Credit Agreements) and Citibank, N.A., as agent for the Lenders (the
"Agent"). Terms defined in each of the Credit Agreements are used herein with
the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule 1 hereto
agree as follows:
1. The Assignor hereby sells and assigns to the Assignee,
and the Assignee hereby purchases and assumes from the Assignor, (a) an interest
in and to the Assignor's rights and obligations under the 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 Outstanding Credit
Exposures 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, LC Fees and the Utilization Fee with respect thereto) to the
Assignee. The Assignor and Assignee shall make all appropriate adjustments in
payments under each of the Credit Agreements, 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 Credit Exposures assigned: $
Principal amount of Outstanding Credit Exposures payable to Assignee: $
Principal amount of Outstanding Credit Exposures payable to Assignor: $
Effective Date(1): $
Amended and Restated
Five-Year Credit Agreement
--------------------------
Percentage interest assigned: %
Assignee's Commitment: $
Aggregate Outstanding Credit Exposures assigned: $
Principal amount of Outstanding Credit Exposures payable to Assignee: $
Principal amount of Outstanding Credit Exposures payable to Assignor: $
Effective Date(2): $
[NAME OF ASSIGNOR], as Assignor
By ______________________________________
Title:
Dated:
[NAME OF ASSIGNEE], as Assignee
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 ____________
DTE ENERGY 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 ASSOCIATE 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 DTE Energy Company, a Michigan
corporation (the "Borrower"), the lenders parties thereto, and Citibank, N.A.,
as Agent for the lenders. Unless otherwise defined herein, capitalized terms
used in this Compliance Certificate have the meanings ascribed thereto in the
Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected __________ of the Borrower;
2. I have reviewed the terms of the Agreement and I have made, or
have caused to be made under my supervision, a detailed review of the
transactions and conditions of the Borrower and its Subsidiaries during the
accounting period covered by the attached financial statements;
3. The examinations described in paragraph 2 did not disclose, and I
have no knowledge of, the existence of any condition or event which constitutes
an Event of Default or Default during or at the end of the accounting period
covered by the attached financial statements or as of the date of this
Certificate, except as set forth below; and
4. Schedule I attached hereto sets forth financial data and
computations evidencing the Borrower's compliance with certain covenants of the
Agreement, all of which data and computations are true, complete and correct.
Described below are the exceptions, if any, to paragraph 3 by
listing, in detail, the nature of the condition or event, the period during
which it has existed and the action which the Borrower has taken, is taking, or
proposes to take with respect to each such condition or event:
The foregoing certifications, together with the computations set
forth in Schedule I hereto and the financial statements delivered with this
Certificate in support hereof, are made and delivered this _____ day
of ______, _____.
DTE ENERGY COMPANY
By ____________________________________
Name:
Title:
SCHEDULE 1 TO COMPLIANCE CERTIFICATE
Compliance as of _________, ____ with
Provisions of Section 5.01(h) of
the Agreement
FINANCIAL 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 DTE Energy Company, a Michigan corporation (the "Borrower"),
the lenders parties thereto (the "Lenders"), each of Citibank, N.A.
("Citibank"), JPMorgan Chase Bank, N.A., Barclays Bank PLC and The Bank of Nova
Scotia, as issuers of letter of credit thereunder (the "LC Issuers"), and
Citibank, 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, the LC Issuers 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 Public Utility Holding Company Act of 1935 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.
DTE ENERGY COMPANY, as the Borrower
By:_________________________________
Title:______________________________
Consented to and Accepted:
CITIBANK, N.A.,
as Agent and as an LC Issuer
By:____________________________________
Title:_________________________________
JPMORGAN CHASE BANK, N.A.,
as an LC Issuer
By:____________________________________
Title:_________________________________
----------
(5) To be included only in a Lender Supplement for a new Lender.
BARCLAYS BANK PLC,
as an LC Issuer
By:____________________________________
Title:_________________________________
THE BANK OF NOVA SCOTIA,
as an LC Issuer
By:____________________________________
Title:_________________________________
COMMITMENT ACCEPTING BANK
$ [BANK]
By:___________________________________
Title:________________________________
