exv10w1



 





Exhibit 10.1




AMENDMENT NO. 1




TO




FIVE-YEAR CREDIT AGREEMENT




          THIS AMENDMENT NO. 1 TO FIVE-YEAR CREDIT AGREEMENT (this “Amendment”) is made as of
January 10, 2007, by and among DTE ENERGY COMPANY (the “Borrower”), the banks, financial
institutions and other institutional lenders listed on the signature pages hereof (the
“Lenders”), CITIBANK, N.A., as Administrative Agent, and BARCLAYS BANK PLC and JPMORGAN
CHASE BANK, N.A., as Co-Syndication Agents, under that certain Five-Year Credit Agreement, dated as
of October 17, 2005, by and among the Borrower, the banks, financial institutions and other
institutional lenders from time to time parties thereto, the Administrative Agent and the
Co-Syndication Agents (as amended, restated or otherwise modified from time to time, the
“Credit Agreement”). Defined terms used herein and not otherwise defined herein shall have
the meaning given to them in the Credit Agreement.




WITNESSETH




          WHEREAS, the Borrower, the Lenders, the Administrative Agent and the Co-Syndication Agents are
parties to the Credit Agreement; and




          WHEREAS, the Borrower has requested that the Administrative Agent, the Co-Syndication Agents
and the Lenders amend the Credit Agreement on the terms and conditions set forth herein;




          WHEREAS, the Borrower, the Administrative Agent, the Co-Syndication Agents and the requisite
number of Lenders have agreed to amend the Credit Agreement on the terms and conditions set forth
herein;




          NOW, THEREFORE, in consideration of the premises set forth above, the terms and conditions
contained herein, and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto have agreed to the following amendments to the Credit
Agreement:





	1.	 	Amendments to the Credit Agreement. Effective as of December 31, 2006 (the
“Effective Date”) and subject to the satisfaction of the conditions precedent set
forth in Section 2 below, the Credit Agreement is hereby amended as follows:






	 	1.1.	 	Section 1.01 of the Credit Agreement is amended to insert the following new
definitions of “Excluded Pension Effects”, “Excluded Short-Term Debt”,
“Funded Debt”, “Guaranteed Obligations”, “Hybrid Equity
Securities”, “Mandatorily Convertible Securities”, and “Total Funded
Debt” alphabetically therein:






     “Excluded Pension Effects” means the non-cash effects on Consolidated
Net Worth resulting from the implementation of FASB Statement of Financial
Accounting Standards No. 158, Employers’ Accounting for Defined Benefit



 









 







Pension and Other Postretirement Plans, an amendment of FASB Statements No. 87,
88, 106, and 132(R), dated September 2006.




     “Excluded Short-Term Debt” means Debt of MichCon or any of its
Subsidiaries having an original maturity of not more than 365 days in an aggregate
amount of not more than $450,000,000.




     “Funded Debt” means, as to any Person, without duplication: (a) all
Debt of such Person for borrowed money or which has been incurred in connection with
the acquisition of assets (excluding (i) contingent reimbursement obligations in
respect of letters of credit and bankers’ acceptances, (ii) Nonrecourse Debt, (iii)
Junior Subordinated Debt, (iv) Mandatorily Convertible Securities, and (v) Hybrid
Equity Securities), (b) all capital lease obligations of such Person and (c) all
Guaranteed Obligations of Funded Debt of other Persons.




     “Guaranteed Obligations” has the meaning specified in clause
(h) of the definition of “Debt”.




     “Hybrid Equity Securities” means any securities issued by the Borrower
or its Subsidiary or a financing vehicle of the Borrower or its Subsidiary that (i)
are classified as possessing a minimum of “intermediate equity content” by S&P,
Basket C equity credit by Moody’s, and 50% equity credit by Fitch and (ii) require
no repayments or prepayments and no mandatory redemptions or repurchases, in each
case, prior to at least 91 days after the later of the termination of the
Commitments and the repayment in full of the Revolving Credit Advances and all other
amounts due under this Agreement.




     “Mandatorily Convertible Securities” means any mandatorily convertible
equity-linked securities issued by the Borrower or its Subsidiary, so long as the
terms of such securities require no repayments or prepayments and no mandatory
redemptions or repurchases, in each case prior to at least 91 days after the later
of the termination of the Commitments and the repayment in full of the Revolving
Credit Advances and all other amounts due under this Agreement.




     “Total Funded Debt” means all Funded Debt of the Borrower and its
Consolidated Subsidiaries, on a consolidated basis, as determined in accordance with
GAAP.




	 	1.2.	 	Section 1.01 of the Credit Agreement is amended to delete the definition of
“Excluded Hedging Debt” in its entirety.
	 
	 	1.3.	 	Section 1.01 of the Credit Agreement is amended to delete the definition of
“Capitalization” in its entirety and to substitute the following therefor:






     “Capitalization” means the sum of (a) Total Funded Debt plus
(b) Consolidated Net Worth.



2









 






	 	1.4.	 	Section 1.01 of the Credit Agreement is amended to delete the definition of
“Consolidated Net Worth” in its entirety and to substitute the following
therefor:






     “Consolidated Net Worth” means, as of any date of determination, the
consolidated total stockholders’ equity, including capital stock (but excluding
treasury stock and capital stock subscribed and unissued), additional paid-in
capital and retained earnings (but excluding the Excluded Pension Effects) of the
Borrower and its Subsidiaries determined in accordance with GAAP.




	 	1.5.	 	Section 1.01 of the Credit Agreement is amended to insert at the end of clause
(h) of the definition of “Debt” the following: “(all such obligations under
this clause (h) being “Guaranteed Obligations”).
	 
	 	1.6.	 	Section 6.01(i) of the Credit Agreement is amended and restated in its entirety
to read as follows:






     (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 (a) Total Funded
Debt to (b) Capitalization in excess of .65:1; provided that for purposes of
calculating the foregoing ratio as of the last day of any fiscal quarter other than
any fiscal quarter ending on June 30, “Total Funded Debt” for purposes of
clauses (a) and (b) above shall be calculated exclusive of all
Excluded Short-Term Debt outstanding as of such date; or




	 	1.7.	 	Exhibit F of the Credit Agreement is amended and restated in its entirety to
read as set forth in the form attached hereto.






	2.	 	Conditions of Effectiveness. The effectiveness of this Amendment is subject to the
conditions precedent that the Administrative Agent shall have received:






	 	(a)	 	duly executed originals of this Amendment from each of the
Borrower, the requisite number of Lenders required pursuant to Section 8.01 and
the Administrative Agent; and
	 
	 	(b)	 	such other documents, instruments and agreements as the
Administrative Agent shall reasonably request.






	3.	 	Representations and Warranties and Reaffirmations of the Borrower.






	 	3.1.	 	The Borrower hereby represents and warrants that (i) this Amendment and the
Credit Agreement as previously executed and as modified hereby constitute legal, valid
and binding obligations of the Borrower and are enforceable against the Borrower in
accordance with their terms (except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement of
creditors’ rights generally), and (ii) no Default or Event of Default has occurred and
is continuing.




3









 












	 	3.2.	 	Upon the effectiveness of this Amendment and after giving effect hereto, the
Borrower hereby reaffirms all covenants, representations and warranties made in the
Credit Agreement as modified hereby, and agrees that all such covenants,
representations and warranties shall be deemed to have been remade as of the Effective
Date, except that any such covenant, representation, or warranty that was made as of a
specific date shall be considered reaffirmed only as of such date.






	4.	 	Reference to the Effect on the Credit Agreement.






	 	4.1.	 	Upon the effectiveness of Section 1 hereof, on and after the date hereof, each
reference in the Credit Agreement (including any reference therein to “this Agreement,”
“hereunder,” “hereof,” “herein” or words of like import referring thereto) or in any
other Loan Document shall mean and be a reference to the Credit Agreement as modified
hereby.
	 
	 	4.2.	 	Except as specifically modified above, the Credit Agreement and all other
documents, instruments and agreements executed and/or delivered in connection therewith
shall remain in full force and effect, and are hereby ratified and confirmed.
	 
	 	4.3.	 	The execution, delivery and effectiveness of this Amendment shall not operate
as a waiver of any right, power or remedy of the Administrative Agent or the Lenders,
nor constitute a waiver of any provision of the Credit Agreement or any other
documents, instruments and agreements executed and/or delivered in connection
therewith.
	 
	 	4.4.	 	Upon satisfaction of the conditions set forth in Section 2 hereof and the
execution hereof by the Borrower and the Required Lenders, this Amendment shall be
binding upon all parties to the Credit Agreement.






	5.	 	GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
	 
	6.	 	Headings. Section headings in this Amendment are included herein for convenience of
reference only and shall not constitute a part of this Amendment for any other purpose.
	 
	7.	 	Counterparts. This Amendment may be executed by one or more of the parties to this
Amendment on any number of separate counterparts and all of said counterparts taken together
shall be deemed to constitute one and the same instrument.





4









 





     IN WITNESS WHEREOF, this Amendment has been duly executed as of the day and year first above
written.



	 	 	 	 	 	 	 
	 	 	DTE ENERGY COMPANY, as the Borrower
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/David R. Murphy	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	David R. Murphy	 	 
	 

	 	Title:
	 	Assistant Treasurer	 	 






Signature Page to

DTE Energy Company

Amendment No. 1 to Five-Year Credit Agreement




 









 








	 	 	 	 	 	 	 
	 	 	CITIBANK, N.A., as Administrative
Agent, as a Lender and as an LC Issuer
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/Amit Vasani	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Amit Vasani	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	BARCLAYS BANK PLC, as Co-Syndication Agent, as
a Lender and as an LC Issuer
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/David Barton	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	David Barton	 	 
	 

	 	Title:
	 	Associate Director	 	 
	 
	 	 	 	 	 	 
	 	 	JPMORGAN CHASE BANK, N.A., as
Co-Syndication Agent, as a Lender and as an
LC Issuer
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/Nancy R. Barwig	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Nancy R. Barwig	 	 
	 

	 	Title:
	 	Vice President	 	 






Signature Page to

DTE Energy Company

Amendment No. 1 to Five-Year Credit Agreement





 









 








	 	 	 	 	 	 	 
	 	 	KEYBANK NATIONAL ASSOCIATION, as Co-Documentation Agent and as a Lender
	 
	 	 	 	 	 	 
	 

	 	By
	 	/s/Sherrie I. Manson	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Sherrie I. Manson	 	 
	 

	 	Title:
	 	Sr. Vice President	 	 






Signature Page to

DTE Energy Company

Amendment No. 1 to Five-Year Credit Agreement




 









 






	 	 	 	 	 	 	 
	 	 	THE ROYAL BANK OF SCOTLAND plc, as Co-Documentation Agent and as a Lender
	 
	 	 	 	 	 	 
	 

	 	By
	 	/s/Andrew N. Taylor	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Andrew N. Taylor	 	 
	 

	 	Title:
	 	Vice President	 	 






Signature Page to

DTE Energy Company

Amendment No. 1 to Five-Year Credit Agreement




 









 








	 	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A., as a Lender
	 
	 	 	 	 	 	 
	 

	 	By
	 	/s/Kevin Bertelsen	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Kevin Bertelsen	 	 
	 

	 	Title:
	 	Senior Vice President	 	 






Signature Page to

DTE Energy Company

Amendment No. 1 to Five-Year Credit Agreement




 









 






	 	 	 	 	 	 	 
	 	 	BNP PARIBAS, as a Lender
	 
	 	 	 	 	 	 
	 

	 	By
	 	/s/Leonardo Osorio	 	 
	 

	 	 
	 	 	 	 
	 

	 	Name:
	 	Leonardo Osorio	 	 
	 

	 	Title:
	 	Director	 	 
	 
	 	 	 	 	 	 
	 

	 	By
	 	/s/Jerome Guttieres	 	 
	 

	 	 
	 	 	 	 
	 

	 	Name:
	 	Jerome Guttieres	 	 
	 

	 	Title:
	 	Vice President	 	 






Signature Page to

DTE Energy Company

Amendment No. 1 to Five-Year Credit Agreement





 









 





	 	 	 	 	 
	 	 	COMERICA BANK, as a Lender
	 
	 	 	 	 
	 

	 	By
	 	/s/Steven J. McCormack
	 

	 	 	 	 
	 

	 	Name:
	 	Steven J. McCormack
	 

	 	Title:
	 	Vice President






Signature Page to

DTE Energy Company

Amendment No. 1 to Five-Year Credit Agreement




 









 





	 	 	 	 	 
	 	 	THE BANK OF NOVA SCOTIA, as a Lender and as an LC Issuer
	 
	 	 	 	 
	 

	 	By
	 	/s/Thane A. Rattew
	 

	 	 	 	 
	 

	 	Name:
	 	Thane A. Rattew
	 

	 	Title:
	 	Managing Director






Signature Page to

DTE Energy Company

Amendment No. 1 to Five-Year Credit Agreement




 









 





	 	 	 	 	 
	 	 	UBS LOAN FINANCE LLC, as a Lender
	 
	 	 	 	 
	 

	 	By
	 	/s/Richard L. Tavrow
	 

	 	 	 	 
	 

	 	Name:
	 	Richard L. Tavrow
	 

	 	Title:
	 	Director
	 
	 	 	 	 
	 

	 	By
	 	/s/Irja R. Otsa
	 

	 	 	 	 
	 

	 	Name:
	 	Irja R. Otsa
	 

	 	Title:
	 	Associate Director






Signature Page to

DTE Energy Company

Amendment No. 1 to Five-Year Credit Agreement




 









 





	 	 	 	 	 
	 	 	WACHOVIA BANK, N.A., as a Lender
	 
	 	 	 	 
	 

	 	By	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	Title:	 	 






Signature Page to

DTE Energy Company

Amendment No. 1 to Five-Year Credit Agreement




 









 





	 	 	 	 	 
	 	 	THE BANK OF NEW YORK, as a Lender
	 
	 	 	 	 
	 

	 	By
	 	/s/Richard Fronapfel, Jr.
	 

	 	 	 	 
	 

	 	Name:
	 	Richard Fronapfel, Jr.
	 

	 	Title:
	 	Vice President






Signature Page to

DTE Energy Company

Amendment No. 1 to Five-Year Credit Agreement




 









 





	 	 	 	 	 
	 	 	UNION BANK OF CALIFORNIA, N.A., as a Lender
	 
	 	 	 	 
	 

	 	By
	 	/s/Dennis G. Blank
	 

	 	 	 	 
	 

	 	Name:
	 	Dennis G. Blank
	 

	 	Title:
	 	Vice President






Signature Page to

DTE Energy Company

Amendment No. 1 to Five-Year Credit Agreement




 









 





	 	 	 	 	 
	 	 	CREDIT SUISSE, CAYMAN ISLANDS BRANCH, as a Lender
	 
	 	 	 	 
	 

	 	By
	 	/s/Sarah Wu
	 

	 	 	 	 
	 

	 	Name:
	 	Sarah Wu
	 

	 	Title:
	 	Director
	 
	 	 	 	 
	 

	 	By
	 	/s/Shaheen Malik
	 

	 	 	 	 
	 

	 	Name:
	 	Shaheen Malik
	 

	 	Title:
	 	Associate






Signature Page to

DTE Energy Company

Amendment No. 1 to Five-Year Credit Agreement




 









 





	 	 	 	 	 
	 	 	DEUTSCHE BANK AG NEW YORK BRANCH, as a Lender
	 
	 	 	 	 
	 

	 	By
	 	/s/Marcus Tarkington
	 

	 	 	 	 
	 

	 	Name:
	 	Marcus Tarkington
	 

	 	Title:
	 	Director
	 
	 	 	 	 
	 

	 	By
	 	/s/Rainer Meier
	 

	 	 	 	 
	 

	 	Name:
	 	Rainer Meier
	 

	 	Title:
	 	Vice President






Signature Page to

DTE Energy Company

Amendment No. 1 to Five-Year Credit Agreement




 









 





	 	 	 	 	 
	 	 	FIFTH THIRD BANK, A MICHIGAN BANKING CORPORATION, as a Lender
	 
	 	 	 	 
	 

	 	By
	 	/s/Brian Jelinski
	 

	 	 	 	 
	 

	 	Name:
	 	Brian Jelinski
	 

	 	Title:
	 	Officer






Signature Page to

DTE Energy Company

Amendment No. 1 to Five-Year Credit Agreement




 









 





	 	 	 	 	 
	 	 	THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH (successor-by-merger to
UFJ Bank Limited), as a Lender
	 
	 	 	 	 
	 

	 	By
	 	/s/Chi-Cheng Chen
	 

	 	 	 	 
	 

	 	Name:
	 	Chi-Cheng Chen
	 

	 	Title:
	 	Authorized Signatory






Signature Page to

DTE Energy Company

Amendment No. 1 to Five-Year Credit Agreement





 










 





	 	 	 	 	 	 	 
	 	 	MELLON BANK, N.A., as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By
	 	/s/Thomas J. Tarasovich, Jr.
 

	 	 
	 

	 	Name:
	 	Thomas J. Tarasovich, Jr.	 	 
	 

	 	Title:
	 	Vice President	 	 






Signature Page to

DTE Energy Company

Amendment No. 1 to Five-Year Credit Agreement




 









 





	 	 	 	 	 	 	 
	 	 	LASALLE BANK MIDWEST NATIONAL ASSOCIATION, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 






Signature Page to

DTE Energy Company

Amendment No. 1 to Five-Year Credit Agreement




 









 





	 	 	 	 	 	 	 
	 	 	MIZUHO CORPORATE BANK, LTD., as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By
	 	/s/Raymond Ventura
 

	 	 
	 

	 	Name:
	 	Raymond Ventura	 	 
	 

	 	Title:
	 	Deputy General Manager	 	 






Signature Page to

DTE Energy Company

Amendment No. 1 to Five-Year Credit Agreement




 









 





	 	 	 	 	 	 	 
	 	 	MORGAN STANLEY BANK, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 






Signature Page to

DTE Energy Company

Amendment No. 1 to Five-Year Credit Agreement




 









 





	 	 	 	 	 	 	 
	 	 	THE NORTHERN TRUST COMPANY, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By
	 	/s/Alex Nikorov
 

	 	 
	 

	 	Name:
	 	Alex Nikorov	 	 
	 

	 	Title:
	 	Second – Vice President	 	 






Signature Page to

DTE Energy Company

Amendment No. 1 to Five-Year Credit Agreement




 









 





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 1 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 Total Funded Debt to Capitalization (Section 6.01(i)).




	 	 	 	 	 
	(A) Numerator (Total Funded Debt):
	 	 	 	 
	(i) Debt for borrowed money or which has been incurred
in connection with the acquisition of assets (exclusive
of contingent reimbursement obligations in respect of
letters of credit and bankers’ acceptances):
	 	$	                    	 
	(ii) Minus: Nonrecourse Debt:
	 	-$	                    	 
	(iii) Minus: Junior Subordinated Debt:
	 	-$	                    	 
	(iv) Minus: Mandatorily Convertible Securities:
	 	-$	                    	 
	(v) Minus: Hybrid Equity Securities:
	 	-$	                    	 
	(vi) Minus: For any fiscal quarter other than the
fiscal quarter ending on June 30, Excluded Short-Term
Debt:
	 	-$	                    	 
	(vii) Plus: Capital lease obligations:
	 	+$	                    	 
	(viii) Plus: Guaranty Obligations of Funded Debt of
other Persons:
	 	+$	                    	 
	(ix) Numerator: (A)(i) minus (A)(ii) through (A)(vi)
plus (A)(vii) plus (A)(viii):
	 	$	                    	 
	 
	 	 	 	 
	(B) Denominator (Capitalization):
	 	 	 	 
	(i) Total Funded Debt: (A)(ix)
	 	$	                    	 
	(ii) Plus: Consolidated Net Worth:
	 	+$	                    	 
	(iii) Denominator: (B)(i) plus (B)(ii):
	 	$	                    	 
	 
	 	 	 	 
	(C) State whether the ratio of (A)(ix) to (B)(iii) was not greater
than .65:1:
	 	YES/NO