Exhibit 10.1





Exhibit 10.1




EXECUTION COPY




AMENDED AND RESTATED

FIVE-YEAR CREDIT AGREEMENT




Dated as of October 21, 2011




Among




DTE ENERGY COMPANY,




as Borrower




and




THE INITIAL LENDERS NAMED HEREIN,




as Initial Lenders




and




CITIBANK, N.A.,




as Administrative Agent




and




	 	 	 	 	 
	BARCLAYS CAPITAL,
	 	THE BANK OF NOVA

SCOTIA,
	 	JPMORGAN CHASE

BANK, N.A.,
	 	 	 	 	 
	as Co-Syndication Agent
	 	as Co-Syndication Agent
	 	as Co-Syndication Agent






and




THE ROYAL BANK OF SCOTLAND plc,




as Documentation Agent




	 	 	 
	CITIGROUP GLOBAL MARKETS INC.,
	 	BARCLAYS CAPITAL,
	 	 	 
	as Co-Lead Arranger and Joint Book Runner
	 	as Co-Lead Arranger and Joint Book Runner







 


 









 







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
	 	 	17	 
	SECTION 1.03. Accounting Terms
	 	 	17	 
	SECTION 1.04. Amendment and Restatement of the Existing Credit Agreement
	 	 	18	 
	 
	ARTICLE II: AMOUNTS AND TERMS OF THE REVOLVING CREDIT ADVANCES AND THE FACILITY LCs
	 	 	18	 
	SECTION 2.01. Commitment
	 	 	18	 
	SECTION 2.02. Making the Revolving Credit Advances
	 	 	19	 
	SECTION 2.03. Fees
	 	 	20	 
	SECTION 2.04. Termination or Reduction of the Commitments; Increase of the Commitments
	 	 	21	 
	SECTION 2.05. Repayment of Credit Extensions
	 	 	21	 
	SECTION 2.06. Interest on Revolving Credit Advances
	 	 	22	 
	SECTION 2.07. Interest Rate Determination
	 	 	22	 
	SECTION 2.08. Optional Conversion of Revolving Credit Advances
	 	 	23	 
	SECTION 2.09. Prepayments of Revolving Credit Advances
	 	 	24	 
	SECTION 2.10. Increased Costs
	 	 	25	 
	SECTION 2.11. Illegality
	 	 	26	 
	SECTION 2.12. Payments and Computations
	 	 	27	 
	SECTION 2.13. Taxes
	 	 	28	 
	SECTION 2.14. Sharing of Payments, Etc
	 	 	31	 
	SECTION 2.15. Use of Proceeds
	 	 	31	 
	SECTION 2.16. Facility LCs
	 	 	32	 
	SECTION 2.17. Noteless Agreement; Evidence of Indebtedness
	 	 	35	 
	SECTION 2.18. Defaulting Lenders
	 	 	36	 






 


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	 	 	Page	 
	 
	 	 	 	 
	ARTICLE III: CONDITIONS TO EFFECTIVENESS AND CREDIT EXTENSIONS
	 	 	38	 
	SECTION 3.01. Conditions Precedent to Effectiveness of this Agreement
	 	 	38	 
	SECTION 3.02. Conditions Precedent to Each Credit Extension
	 	 	40	 
	SECTION 3.03. Determinations Under Section 3.01
	 	 	40	 
	 
	 	 	 	 
	ARTICLE IV: REPRESENTATIONS AND WARRANTIES
	 	 	40	 
	SECTION 4.01. Representations and Warranties of the Borrower
	 	 	40	 
	 
	 	 	 	 
	ARTICLE V: COVENANTS OF THE BORROWER
	 	 	43	 
	SECTION 5.01. Affirmative Covenants
	 	 	43	 
	SECTION 5.02. Negative Covenants
	 	 	45	 
	 
	 	 	 	 
	ARTICLE VI: EVENTS OF DEFAULT
	 	 	46	 
	SECTION 6.01. Events of Default
	 	 	46	 
	 
	 	 	 	 
	ARTICLE VII: THE AGENT
	 	 	48	 
	SECTION 7.01. Authorization and Action
	 	 	48	 
	SECTION 7.02. Agent’s Reliance, Etc.
	 	 	49	 
	SECTION 7.03. Citibank and Affiliates
	 	 	49	 
	SECTION 7.04. Lender Credit Decision
	 	 	49	 
	SECTION 7.05. Indemnification
	 	 	50	 
	SECTION 7.06. Successor Agent
	 	 	50	 
	SECTION 7.07. Co-Syndication Agents and Documentation Agent
	 	 	50	 
	 
	 	 	 	 
	ARTICLE VIII: MISCELLANEOUS
	 	 	51	 
	SECTION 8.01. Amendments, Etc.
	 	 	51	 
	SECTION 8.02. Notices, Etc.
	 	 	51	 
	SECTION 8.03. No Waiver; Remedies
	 	 	53	 
	SECTION 8.04. Costs and Expenses; Damage Waiver
	 	 	54	 
	SECTION 8.05. Right of Set-off
	 	 	55	 
	SECTION 8.06. Binding Effect
	 	 	56	 
	SECTION 8.07. Assignments, Designations and Participations
	 	 	56	 
	SECTION 8.08. Confidentiality
	 	 	60	 
	SECTION 8.09. Governing Law
	 	 	61	 
	SECTION 8.10. Execution in Counterparts; Integration
	 	 	61	 
	SECTION 8.11. Jurisdiction, Etc.
	 	 	61	 
	SECTION 8.12. Waiver of Jury Trial
	 	 	62	 
	SECTION 8.13. USA Patriot Act Notification
	 	 	62	 
	SECTION 8.14. Severability
	 	 	62	 
	SECTION 8.15. No Advisory or Fiduciary Responsibility
	 	 	62	 







 


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SCHEDULES AND EXHIBITS




	 	 	 
	Schedules
	 	 
	 
	 	 
	Schedule I

	 	- List of Applicable Lending Offices
	Schedule II

	 	- Existing 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 Assumption
	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 & Williams LLP
	Exhibit F

	 	- Form of Compliance Certificate
	Exhibit G

	 	- Form of Lender Supplement
	Exhibit H

	 	- Form of Conversion Notice
	Exhibit I

	 	- Form of Prepayment Notice





 


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This AMENDED AND RESTATED FIVE-YEAR CREDIT AGREEMENT (this “Agreement”) dated as of
October 21, 2011 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”) for the Lenders (as hereinafter
defined).



PRELIMINARY STATEMENT




WHEREAS, the Borrower, the lenders party thereto and Citibank, as administrative agent, are
currently party to the Three-Year Credit Agreement, dated as of August 20, 2010 (the “Existing
Credit Agreement”).



WHEREAS, the Borrower, the Lenders, the Departing Lenders (as hereinafter defined), and the
Agent have agreed (a) to enter into this Agreement in order to (i) amend and restate the Existing
Credit Agreement in its entirety; (ii) re-evidence the “Obligations” under, and as defined in, the
Existing Credit Agreement, which shall be repayable in accordance with the terms of this Agreement;
and (iii) set forth the terms and conditions under which the Lenders will, from time to time, make
loans to or for the benefit of the Borrower and (b) that each Departing Lender shall cease to be a
party to the Existing Credit Agreement, as evidenced by its execution and delivery of its Departing
Lender Signature Page.



WHEREAS, it is the intent of the parties hereto that this Agreement not constitute a novation
of the obligations and liabilities of the parties under the Existing Credit Agreement or be deemed
to evidence or constitute full repayment of such obligations and liabilities, but that this
Agreement amend and restate in its entirety the Existing Credit Agreement and re-evidence the
obligations and liabilities of the Borrower outstanding thereunder, which shall be payable in
accordance with the terms hereof.



WHEREAS, it is also the intent of the Borrower to confirm that all obligations under the
applicable “Loan Documents” (as referred to and defined in the Existing Credit Agreement) shall
continue in full force and effect as modified or restated by the Loan Documents (as referred to and
defined herein) and that, from and after the Effective Date, all references to the “Credit
Agreement” contained in any such existing “Loan Documents” shall be deemed to refer to this
Agreement.



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.


 


1









 






“Agent” has the meaning specified in the recital of parties to this Agreement.




“Agent’s Account” means the account of the Agent maintained by the Agent at
Citibank with its office at 1615 Brett Road, OPS 3, New Castle, Delaware 19720, Account No.
36852248, Attention: Charles Huester.




“Agents” means the Agent and each Co-Syndication Agent, collectively.




“Agent Parties” has the meaning specified in Section 8.02(b).




“Aggregate Outstanding Credit Exposures” means, at any time, the aggregate of
the Outstanding Credit Exposures of the Lenders.




“Anti-Money Laundering Laws” has the meaning specified in Section 4.01(p).




“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, the percentage rate per annum which is applicable at such time with respect to
Base Rate Advances as set forth in the Pricing Schedule, 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.




“Approved Fund” means any Person (other than a natural person) that (a) is
engaged in making, purchasing, holding or investing in bank loans and similar extensions of
credit in the ordinary course of its business, (b) has a combined capital and surplus of at
least $500,000,000, and (c) is administered or managed by (x) a Lender, (y) an Affiliate of
a Lender or (z) an entity or an Affiliate of an entity that administers or manages a Lender.


 


2









 






“Arrangers” means, collectively, Citigroup Global Markets Inc. and Barclays
Capital, the investment banking division of Barclays Bank PLC, in their capacities as
co-lead arrangers and joint book runners for the credit facility evidenced by this
Agreement.




“Assignment and Assumption” means an assignment and assumption 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, 2010, 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.




“Bankruptcy Event” means, with respect to any Person, such Person (a) becomes
the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator,
trustee, administrator, custodian, assignee for the benefit of creditors or similar Person
charged with the reorganization or liquidation of its business appointed for it, or, in the
good faith determination of the Agent, has taken any action in furtherance of, or indicating
its consent to, approval of, or acquiescence in, any such proceeding or appointment or (b)
has a parent company that has become the subject of a bankruptcy or insolvency proceeding,
or has had a receiver, conservator, trustee, custodian, administrator, assignee for the
benefit of creditors or similar Person charged with reorganization or liquidation of its
business, appointed for it, or has taken any action in furtherance of, or indicating its
consent to, approval of or acquiescence in any such proceeding or appointment;
provided that, a Bankruptcy Event shall not result solely by virtue of any ownership
interest, or the acquisition of any ownership interest, in such Person by a Governmental
Authority or instrumentality thereof; provided, further, that such ownership
interest does not result in or provide such Person with immunity from the jurisdiction of
courts within the United States or from the enforcement of judgments or writs of attachment
on its assets or permit such Person (or such Governmental Authority or instrumentality) to
reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person.




“Base Rate” means a fluctuating interest rate per annum equal to, for any day,
the highest of:




(a) the Prime Rate in effect on such day;




(b) the Eurodollar Rate for a one month Interest Period on such day (or if such
day is not a Business Day, the immediately preceding Business Day) plus 1%; or




(c) 1/2 of 1% per annum above the Federal Funds Rate in effect on such day.




“Base Rate Advance” means a Revolving Credit Advance that bears interest as
provided in Section 2.06(a)(i).


 


3









 






“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 (a) Total Funded Debt plus (b)
Consolidated Net Worth.




“Citibank” has the meaning specified in the recital of parties to this
Agreement.




“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
Revolving Credit Advances to, and participate in Facility LCs issued upon the application
of, the Borrower in an aggregate amount not exceeding the amount set forth opposite such
Lender’s name on Schedule I hereto or if such Lender has entered into any Assignment and
Assumption, 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.




“Communications” has the meaning specified in Section 8.02(b).




“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 (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.


 


4









 






“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.




“Co-Syndication Agents” means, collectively, Barclays Capital, the investment
banking division of Barclays Bank PLC, The Bank of Nova Scotia, and JPMorgan Chase Bank,
N.A., in their capacities as co-syndication agents for the credit facility evidenced by this
Agreement.




“Credit Agreements” means, collectively, this Agreement, the DECO Credit
Agreement and the MichCon Credit Agreement.




“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 (all such obligations under this clause
(h) being “Guaranteed Obligations”), and (i) all Debt referred to in clauses (a)
through (h) above secured by (or for which the holder of such Debt has an existing right,
contingent or otherwise, to be secured by) any Lien on property (including, without
limitation, accounts and contract rights) owned by such Person, even though such Person has
not assumed or become liable for the payment of such Debt. See the definition of
“Nonrecourse Debt” below.




“DECO” means The Detroit Edison Company, a Michigan corporation wholly owned by
the Borrower.


 


5









 






“DECO Credit Agreement” means that certain Amended and Restated Five-Year
Credit Agreement, dated as of the date hereof, by and among DECO, as borrower, the financial
institutions from time to time parties thereto as lenders, and Barclays Bank PLC, as
administrative agent for the lenders, 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.




“Defaulting Lender” means any Lender that (a) has failed, within two Business
Days of the date required to be funded or paid, to (i) fund any portion of its Revolving
Credit Advances, (ii) fund any portion of its participations in Facility LCs or (iii) pay
over to the Agent, any LC Issuer or any other Lender any other amount required to be paid by
it hereunder, unless, in the case of clause (i) above, such failure is the result of such
Lender’s good faith determination that a condition precedent to funding (specifically
identified and including the particular default, if any) has not been satisfied, (b) has
notified the Borrower, the Agent, any LC Issuer or any other Lender in writing, or has made
a public statement to the effect, that it does not intend or expect to comply with any of
its funding obligations under this Agreement (unless, in the good faith determination of the
Agent, such position is based on such Lender’s good faith determination that a condition
precedent to funding a loan under this Agreement cannot be satisfied) or generally under
other agreements in which it commits to extend credit, (c) has failed, within three Business
Days after request by the Agent, any LC Issuer or any other Lender, acting in good faith, to
provide a certification in writing from an authorized officer of such Lender that it will
comply with its obligations to fund prospective Revolving Credit Advances and participations
in then outstanding Facility LCs under this Agreement, provided that such Lender shall cease
to be a Defaulting Lender pursuant to this clause (c) upon the Agent’s and Borrower’s
receipt of such certification, or (d) has become the subject of a Bankruptcy Event;
provided that, if a Bankruptcy Event shall have occurred with respect to a Lender
solely by reason of events relating to a parent company of such Lender, the Agent may, in
its discretion, determine that such Lender is not a “Defaulting Lender” if and for so long
as the Agent is satisfied that such Lender will continue to perform its funding obligations
hereunder.




“Departing Lender” means each lender under the Existing Credit Agreement that
executes and delivers to the Agent a Departing Lender Signature Page.




“Departing Lender Signature Page” means each signature page to this Agreement
on which it is indicated that the Departing Lender executing the same shall cease to be a
party to the Existing Credit Agreement to which it is a party on the Effective Date.




“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
Assumption 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.


 


6









 






“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; (viii) an Approved Fund; and (ix) any other Person approved by the Agent
and, so long as no Event of Default shall be continuing, the Borrower, such approval not to
be unreasonably withheld or delayed by either party; provided, however, that
neither the Borrower nor an Affiliate of the Borrower shall qualify as an Eligible Assignee.




“Enterprises” means DTE Enterprises, Inc., a Michigan corporation wholly-owned
by the Borrower.




“Environmental Action” means any action, suit, demand, demand letter, claim,
notice of non-compliance or violation, notice of liability or potential liability,
investigation, proceeding, consent order or consent agreement relating in any way to any
Environmental Law, Environmental Permit or Hazardous Materials or arising from alleged
injury or threat of injury to 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.


 


7









 






“Environmental Permit” means any permit, approval, identification number,
license or other authorization required under any Environmental Law.




“ERISA” means the Employee Retirement Income Security Act of 1974, as amended
from time to time, and the regulations promulgated and rulings issued thereunder.




“ERISA Affiliate” means any Person that for purposes of Title IV of ERISA is a
member of the Borrower’s controlled group, or under common control with the Borrower, within
the meaning of Section 414 of the Internal Revenue Code.




“ERISA Event” means (a) (i) the occurrence of a reportable event, within the
meaning of Section 4043 of ERISA, with respect to any Plan unless the 30-day notice
requirement with respect to such event has been waived by the PBGC, or (ii) the requirements
of subsection (1) of Section 4043(b) of ERISA (without regard to subsection (2) of such
Section) are met with respect to a contributing sponsor, as defined in Section 4001(a)(13)
of ERISA, of a Plan, and an event described in paragraph (9), (10), (11), (12) or (13) of
Section 4043(c) of ERISA is reasonably expected to occur with respect to such Plan within
the following 30 days; (b) the application for a minimum funding waiver with respect to a
Plan; (c) the provision by the administrator of any Plan of a notice of intent to terminate
such Plan pursuant to Section 4041(a)(2) of ERISA (including any such notice with respect to
a plan amendment referred to in Section 4041(e) of ERISA); (d) the cessation of operations
at a facility of the Borrower or any ERISA Affiliate in the circumstances described in
Section 4062(e) of ERISA; (e) the withdrawal by the Borrower or any ERISA Affiliate from a
Multiple Employer Plan during a plan year for which it was a substantial employer, as
defined in Section 4001(a)(2) of ERISA; (f) the conditions for the imposition of a lien
under Section 302(f) of ERISA shall have been met with respect to any Plan; (g) the adoption
of an amendment to a Plan requiring the provision of security to such Plan pursuant to
Section 307 of ERISA; or (h) the institution by the PBGC of proceedings to terminate a Plan
pursuant to Section 4042 of ERISA, or the occurrence of any event or condition 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 Assumption 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.


 


8









 






“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 Reuters Screen LIBOR01 Page (or on
any successor or substitute page of the Service, or any successor to or
substitute for the Service, providing rate quotations comparable to those currently
provided on such page of the Service, as determined by the Agent after consultation with the
Borrower from time to time for purposes of providing quotations of interest rates applicable
to U.S. dollar deposits in the London interbank market) at approximately 11:00 A.M. (London
time) two Business Days prior to the commencement of such Interest Period, as the rate for
U.S. dollar deposits with a maturity comparable to such Interest Period, or in the event
that such rate is not available at such time for any reason, the average (rounded upward to
the nearest whole multiple of 1/16 of 1% per annum, if such average is not such a multiple)
of the rate per annum at which deposits in U.S. dollars are offered by the principal office
of each of the Reference Banks in London, England to prime banks in the London interbank
market at 11:00 A.M. (London time) two Business Days before the first day of such Interest
Period in an amount approximately equal to such Reference Bank’s Eurodollar Rate Advance
comprising part of such Borrowing to be outstanding during such Interest Period and for a
period equal to such Interest Period, by (b) a percentage equal to 100% minus the Eurodollar
Rate Reserve Percentage for such Interest Period, subject, however, to the
provisions of Section 2.07.




“Eurodollar Rate Advance” means a Revolving Credit Advance that bears interest
as provided in Section 2.06(a)(ii).




“Eurodollar Rate Reserve Percentage” for any Interest Period for all Eurodollar
Rate Advances comprising part of the same Borrowing means the reserve percentage applicable
two Business Days before the first day of such Interest Period under regulations issued from
time to time by the Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, without limitation, any emergency,
supplemental or other marginal reserve requirement) for a member bank of the Federal Reserve
System in New York City with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities (or with respect to any other category of liabilities that includes
deposits by reference to which the interest 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 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.




“Existing Credit Agreement” has the meaning specified in the preliminary
statements of this Agreement.


 


9









 






“Existing Letters of Credit” has the meaning specified in Section 2.16(a).




“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).




“FATCA” means Sections 1471 through 1474 of the Internal Revenue Code, as of
the date of this Agreement, and any current or future regulations or official
interpretations thereof.




“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.




“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.




“GAAP” means generally accepted accounting principles in the United States of
America.




“Governmental Authority” means the government of the United States of America
or any other nation, or of any political subdivision thereof, whether state or local, and
any agency, authority, instrumentality, regulatory body, court, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or administrative powers or
functions of or pertaining to government (including any supra-national bodies such as the
European Union or the European Central Bank).




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


 


10









 






“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.




“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.




“Identified Reports on Form 8-K” means those certain reports of the Borrower
and DECO on Form 8-K filed or furnished with the Securities and Exchange Commission on (a)
February 9, 2011, February 11, 2011, February 22, 2011, March 11, 2011, March 18, 2011,
March 28, 2011, April 27, 2011, May 10, 2011 (two filings), May 16, 2011, June 1, 2011, June
28, 2011, July 28, 2011, August 9, 2011, August 10, 2011, August 26, 2011 and September 2,
2011, with respect to the Borrower, and (b) February 9, 2011, February 22, 2011, March 11,
2011, March 28, 2011, April 27, 2011, May 16, 2011, June 1, 2011, June 28, 2011, July 28,
2011, August 26, 2011 and September 2, 2011, with respect to DECO.




“Initial Lenders” has the meaning specified in the recital of parties to this
Agreement.




“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;


 


11









 






(ii) Interest Periods commencing on the same date for Eurodollar Rate Advances
comprising part of the same Borrowing shall be of the same duration;




(iii) whenever the last day of any Interest Period would otherwise occur on a
day other than a Business Day, the last day of such Interest Period shall be
extended to occur on the next succeeding Business Day, provided,
however, that, if such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the last day of such Interest
Period shall occur on the next preceding Business Day; and




(iv) whenever the first day of any Interest Period occurs on a day of an
initial calendar month for which there is no numerically corresponding day in the
calendar month that succeeds such initial calendar month by the number of months
equal to the number of months in such Interest Period, such Interest Period shall
end on the last Business Day of such succeeding calendar month.




“Internal Revenue Code” means the Internal Revenue Code of 1986, as amended
from time to time, and the regulations promulgated and rulings issued thereunder.




“Junior Subordinated Debt” means (a) subordinated junior deferrable interest
debentures of the Borrower, 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(c).




“LC Issuer” means Barclays Bank PLC, Citibank, JPMorgan Chase Bank, N.A., Bank
of America, N.A., The Royal Bank of Scotland plc and The Bank of Nova Scotia (or, in each
case, any subsidiary or Affiliate thereof designated thereby), in each case, 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;
provided that, with respect to any Facility LC that, by its terms or the terms of
any Facility LC Application related thereto, provides for one or more automatic increases in
the stated amount thereof, the stated amount of such Facility LC shall be deemed to be the
maximum stated amount of such Facility LC after giving effect to all such increases, whether
or not such maximum stated amount is in effect 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).




“Lender Supplement” has the meaning specified in Section 2.04(c).


 


12









 






“Lenders” means the Initial Lenders and each Person that shall become a party
hereto pursuant to Section 8.07(a), (b) and (c). For the avoidance of doubt, the term
“Lenders” excludes Departing Lenders.




“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.




“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.




“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 Amended and Restated Five-Year
Credit Agreement, dated as of the date hereof, among MichCon, as borrower, the financial
institutions from time to time parties thereto as lenders, and JPMorgan Chase Bank, N.A., as
administrative agent for the lenders, as amended, restated, supplemented or otherwise
modified from time to time.




“Modify” and “Modification” have the respective meanings specified in
Section 2.16(a).




“Moody’s” means Moody’s Investors Service, Inc.




“Moody’s Rating” is defined in the Pricing Schedule.




“Multiemployer Plan” means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate is making or accruing an
obligation to make contributions, or has within any of the preceding five plan years made or
accrued an obligation to make contributions.


 


13









 






“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 (a) to assets which were purchased or refinanced by the
Borrower or such Subsidiary with the proceeds of such Debt, (b) to the proceeds of such
assets, or (c) if such assets are held by a Subsidiary formed solely for such purpose, to
such Subsidiary or the equity interests in such Subsidiary; provided that, for
purposes of clarity, it is 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.




“OFAC” has the meaning specified in Section 4.01(o).




“Other Taxes” has the meaning specified in Section 2.13(b).




“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.




“Participant Register” has the meaning specified in Section 8.07(e).




“PBGC” means the Pension Benefit Guaranty Corporation (or any successor).




“Person” means an individual, partnership, corporation (including a business
trust), joint stock company, trust, unincorporated association, joint venture, limited
liability company or other entity, or a government or any political subdivision or agency
thereof.




“Plan” means a Single Employer Plan or a Multiple Employer Plan.


 


14









 






“Platform” has the meaning specified in Section 8.02(b).




“Pricing Schedule” means the Pricing Schedule identifying the Applicable
Margin, the Applicable Percentage and the Applicable LC Fee Rate attached hereto identified
as such.




“Prime Rate” means the rate of interest per annum established by Citibank in
New York, New York, from time to time, as Citibank’s prime rate or base rate.




“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; provided that, in the case of Section
2.18 when a Defaulting Lender shall exist (other than, for purposes of clarity, a Lender
that is attempting to cure its “Defaulting Lender” status pursuant to the last sentence of
Section 2.18), “Pro Rata Share” shall mean 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
Lender’s Commitments (disregarding any such Defaulting Lender’s Commitment). If the
Commitment has terminated or expired, the Pro Rata Shares shall be determined based upon the
Commitments most recently in effect, giving effect to any assignments and to any Lender’s
status as a Defaulting Lender at the time of determination.




“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, subject to Section 2.18, 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 Standard &Poor’s Financial
Services LLC business, and any successor thereto.




“S&P Rating” is defined in the Pricing Schedule.


 


15









 






“SEC Reports” means the following reports and financial statements:




(i) the Borrower’s and DECO’s Annual Reports on Form 10-K for the year ended December
31, 2010, as filed with or sent to the Securities and Exchange Commission, including the
Audited Statements of the Borrower and DECO, respectively;




(ii) the Borrower’s and DECO’s Quarterly Reports on Form 10-Q for the quarters ended
March 31, 2011 and June 30, 2011, in each case, as filed with or sent to the Securities and
Exchange Commission; and




(iii) the Identified Reports on Form 8-K, including therein the Audited Statements of
MichCon.




“Service” means Reuters Monitor Money Rate Service.




“Securitization Bonds” means Debt of one or more Securitization SPEs, issued
pursuant to The Customer Choice and Electricity Reliability Act, Act No. 142, Public Acts of
Michigan, 2000, as the same may be amended from time to time.




“Securitization SPE” means an entity established or to be established directly
or indirectly by the Borrower for the purpose of issuing Securitization Bonds and includes
The Detroit Edison Securitization Funding LLC, a limited liability company organized under
the laws of the State of Michigan.




“Significant Subsidiary” means (i) DECO, Enterprises and MichCon, and (ii) any
other Subsidiary of the Borrower (A) the total assets (after intercompany eliminations) of
which exceed 30% of the total assets of the Borrower and its Subsidiaries or (B) the net
worth of which exceeds 30% of the Consolidated Net Worth, 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.


 


16









 






“Taxes” has the meaning specified in Section 2.13(a).




“Terminating Agreements” means, collectively, (a) that certain Amended and
Restated Two-Year Credit Agreement, dated as of August 20, 2010, by and among Borrower, the
financial institutions from time to time parties thereto as lenders, Citibank, as
Administrative Agent, and Barclays Bank PLC, The Bank of Nova Scotia, and JPMorgan Chase
Bank, N.A., as Co-Syndication Agents, as amended, restated, supplemented or otherwise
modified from time to time, (b) that certain Amended and Restated Two-Year Credit Agreement,
dated as of August 20, 2010, by and among DECO, as borrower, the financial institutions from
time to time parties thereto as lenders, Barclays Bank PLC, as Administrative Agent, and
Citibank, The Royal Bank of Scotland plc and JPMorgan Chase Bank, N.A., as Co-Syndication
Agents, as amended, restated, supplemented or otherwise modified from time to time, and (c)
that certain Amended and Restated Two-Year Credit Agreement, dated as of August 20, 2010, by
and among MichCon, as borrower, the financial institutions from time to time parties thereto
as lenders, JPMorgan Chase Bank, N.A., as Administrative Agent, and Barclays Bank PLC, Bank
of America, N.A. and Citibank, as Co-Syndication Agents, as amended, restated, supplemented
or otherwise modified from time to time.




“Termination Date” means the earlier of (a) October 21, 2016, and (b) the date
of termination in whole of the Commitments pursuant to Section 2.04 or 6.01.




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




“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. Notwithstanding any other provision contained herein, all terms of an
accounting or financial nature used herein shall be construed, and all computations of amounts and
ratios referred to herein shall be made without giving effect to any election under Accounting
Standards Codification 825-10-25 (formerly referred to as Statement of Financial Accounting
Standards 159) (or any other Financial Accounting Standard having a similar result or effect) to
value any Debt or other liabilities of the Borrower or any of its Subsidiaries at “fair value”, as
defined therein.


 


17









 





SECTION 1.04. Amendment and Restatement of the Existing Credit Agreement.
The parties to this Agreement agree that, upon (i) the execution and delivery by each of the
parties hereto of this Agreement and (ii) satisfaction of the conditions set forth in Section 3.01,
the terms and provisions of the Existing Credit Agreement shall be and hereby are amended,
superseded and restated in their entirety by the terms and provisions of this Agreement. This
Agreement is not intended to and shall not constitute a novation. All loans made and obligations
incurred under the Existing Credit Agreement which are outstanding on the Effective Date shall
continue as Obligations under (and shall be governed by the terms of) this Agreement and the other
Loan Documents. Without limiting the foregoing, upon the effectiveness hereof: (a) all references
in the “Loan Documents” (as defined in the Existing Credit Agreement) to the “Agent”, the “Credit
Agreement” and the “Loan Documents” shall be deemed to refer to the Agent, this Agreement and the
Loan Documents, (b) all obligations constituting “Obligations” with any Lender or any Affiliate of
any Lender which are outstanding on the Effective Date shall continue as Obligations under this
Agreement and the other Loan Documents, (c) the Agent shall make such reallocations, sales,
assignments or other relevant actions in respect of each Lender’s credit and loan exposure under
the Existing Credit Agreement as are necessary in order that each such Lender’s outstanding
Revolving Credit Advances hereunder reflect such Lender’s Pro Rata Share of the outstanding
aggregate Revolving Credit Advances on the Effective Date, (d) the Existing Revolving Credit
Advances (as defined in Section 2.01) of each Departing Lender shall be repaid in full (accompanied
by any accrued and unpaid interest and fees thereon), each Departing Lender’s “Commitment” under
the Existing Credit Agreement shall be terminated and each Departing Lender shall not be a Lender
hereunder, and (e) the Borrower hereby agrees to compensate each Lender (including each Departing
Lender) for any and all losses, costs and expenses incurred by such Lender in connection with the
sale and assignment of any Eurodollar Rate Advances (including the “Eurodollar Rate Advances” under
the Existing Credit Agreement) and such reallocation described above, in each case on the terms and
in the manner set forth in Section 8.04(c) hereof.



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, (i) to make Revolving Credit Advances to the Borrower from time to time on
any Business Day during the period from the Effective Date until the Termination Date and (ii) to
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, or the remaining balance of Commitments
available for a Borrowing, if such balance is less than $5,000,000, 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.


 


18









 





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(a) and (ii) at no time shall the aggregate number of all
Borrowings comprising Eurodollar Rate Advances outstanding hereunder be greater than ten.



(c) Each Notice of Borrowing shall be irrevocable and binding on the Borrower. In the case of
any Borrowing that the related Notice of Borrowing specifies is to be comprised of Eurodollar Rate
Advances, the Borrower shall indemnify each Lender against any loss, cost or expense incurred by
such Lender as a result of any failure to fulfill on or before the date specified in such Notice of
Borrowing for such Borrowing the applicable conditions set forth in Article III, including, without
limitation, any loss (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.


 


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(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 the effective date
specified in the Assignment and Assumption 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 Business 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) 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 amounts under the
Facility LCs, such fee to be payable in arrears quarterly on the last Business 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.


 


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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, or the remaining balance, if
less than $5,000,000. 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; 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, (ii) the “Commitments” under each of the DECO Credit Agreement and the
MichCon Credit Agreement (as such term is defined in each of the respective Credit Agreements) must
be simultaneously increased by a ratable portion (in proportion to the aggregate “Commitments”
under each such Credit Agreement (as such term is defined in each of the respective Credit
Agreements)) pursuant to and in accordance with Section 2.04(c) of each thereof, and (iii) in no
event shall the aggregate “Commitments” under all Credit Agreements (as such term is defined in
each of the respective Credit Agreements) (x) exceed $2,000,000,000, or (y) be increased pursuant
to Section 2.04(c) of each Credit Agreement by an aggregate amount in excess of $200,000,000. 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 and
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,
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, 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.


 


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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 Business 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, interest on the amount of any interest, fee or other amount payable
hereunder that is not paid when due, from the date such amount shall be due until such amount shall
be paid in full, payable in arrears on the date such amount shall be paid in full and on demand, at
a rate per annum equal at all times to 2% per annum above the rate per annum required to be paid on
Base Rate Advances pursuant to clause (a)(i) above.



SECTION 2.07. Interest Rate Determination. (a) If applicable, each Reference Bank
agrees to furnish to the Agent timely information for the purpose of determining each Eurodollar
Rate. If any one or more of the Reference Banks shall not furnish such timely information to the
Agent for the purpose of determining any such interest rate, the Agent shall determine such
interest rate on the basis of timely information furnished by the remaining Reference Banks. The
Agent shall give prompt notice to the Borrower and the Lenders of the applicable interest rate
determined by the Agent for purposes of Section 2.06(a)(i) or (ii), and the rate, if any, furnished
by each Reference Bank for the purpose of determining the interest rate under Section 2.06(a)(ii).



(b) If, with respect to any Eurodollar Rate Advances, the Required Lenders notify the Agent
that the Eurodollar Rate for any Interest Period for such Eurodollar Rate Advances will not
adequately reflect the cost to such Required Lenders of making, funding or maintaining their
respective Eurodollar Rate Advances for such Interest Period, the Agent shall forthwith so
notify the Borrower and the Lenders, whereupon (i) each Eurodollar Rate Advance will automatically,
on the last day of the then existing Interest Period therefor, Convert into a Base Rate Advance,
and (ii) the obligation of the Lenders to make, or to Convert Revolving Credit Advances into,
Eurodollar Rate Advances shall be suspended until the Agent shall notify the Borrower and the
Lenders that the circumstances causing such suspension no longer exist.


 


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(c) If the Borrower shall fail to select the duration of any Interest Period for any
Eurodollar Rate Advances in accordance with the provisions contained in the definition of “Interest
Period” in Section 1.01, the Agent will forthwith so notify the Borrower and the Lenders and such
Eurodollar Rate Advances will automatically, on the last day of the then existing Interest Period
therefor, Convert into Base Rate Advances.



(d) On the date on which the aggregate unpaid principal amount of Eurodollar Rate Advances
comprising any Borrowing shall be reduced, by payment or prepayment or otherwise, to less than
$5,000,000, such Eurodollar Rate Advances shall automatically Convert into Base Rate Advances.



(e) Upon the occurrence and during the continuance of any Event of Default, (i) each
Eurodollar Rate Advance will automatically, on the last day of the then existing Interest Period
therefor, Convert into a Base Rate Advance and (ii) the obligation of the Lenders to make, or to
Convert Revolving Credit Advances into, Eurodollar Rate Advances shall be suspended.



(f) If the Service is not available or a rate does not timely appear on the Service and fewer
than two Reference Banks furnish timely information to the Agent for determining the Eurodollar
Rate for any Eurodollar Rate Advances:




(i) the Agent shall forthwith notify the Borrower and the Lenders that the interest
rate cannot be determined for such Eurodollar Rate Advances,




(ii) with respect to Eurodollar Rate Advances, each such Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest Period therefor, Convert into a
Base Rate Advance (or if such Advance is then a Base Rate Advance, will continue as a Base
Rate Advance), and




(iii) the obligation of the Lenders to make Eurodollar Rate Advances or to Convert
Revolving Credit Advances into Eurodollar Rate Advances shall be suspended until the Agent
shall notify the Borrower and the Lenders that the circumstances causing such suspension no
longer exist.



SECTION 2.08. Optional Conversion of Revolving Credit Advances. The Borrower may on
any Business Day, upon notice given to the Agent not later than 11:00 A.M. (New York City time) on
the third Business Day prior to the date of the proposed Conversion and subject to the provisions
of Sections 2.07 and 2.11(a), 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 be substantially in the form of Exhibit H hereto, and 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.


 


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SECTION 2.09. Prepayments of Revolving Credit Advances. (a) Optional
Prepayment. The Borrower may on any Business Day, upon notice given to the Agent substantially
in the form of Exhibit I hereto, not later than 11:00 A.M. (New York City time), (i) on the
same day for Base Rate Advances and (ii) on the third 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, or the
remaining balance, if less than $5,000,000, 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 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.


 


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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 Person of agreeing to make or
making, funding or maintaining Revolving Credit Advances or participating in any Facility LC
hereunder, including as a result of any tax, levy, impost, deduction, fee, assessment, duty, charge
or withholding, and all liabilities with respect thereto, imposed on its loans, loan principal,
letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities
or capital attributable thereto, excluding for purposes of this Section 2.10 any such increased
costs resulting from Taxes, amounts excluded from Taxes pursuant to Section 2.13, and Other Taxes,
then the Borrower shall from time to time, upon demand by such Person (with a copy of such demand
to the Agent), pay to the Agent on its own account or for the account of such Person, as
applicable, additional amounts sufficient to compensate such Person, for such increased cost. A
certificate as to the amount of such increased cost, submitted to the Borrower and the Agent by
such Person, 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 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 $3,500 administrative fee.


 


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(d) If any Lender requests compensation under this Section 2.10, then such Lender shall, if
requested by the Borrower, use reasonable efforts to designate a different Applicable Lending
Office for funding or booking its Revolving Credit Advances hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of
such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant
to Section 2.10 in the future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to
pay all reasonable costs and expenses incurred by any Lender in connection with any such
designation or assignment.



(e) For purposes of this Section 2.10, and notwithstanding anything herein to the contrary,
(i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules,
requirements, guidelines and directives thereunder or issued in connection therewith or in
implementation thereof and (ii) all requests, rules, guidelines, requirements and directives
promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision
(or any successor or similar authority) or the United States or foreign regulatory authorities, in
each case pursuant to Basel III, shall in each case be deemed to have been enacted, adopted and
issued after the date hereof, regardless of the date enacted, adopted, issued or implemented.



(f) Failure or delay on the part of any Lender or LC Issuer to demand compensation pursuant to
this Section shall not constitute a waiver of such Lender’s or such LC Issuer’s right to demand
such compensation; provided that, the Borrower shall not be required to compensate a Lender
or LC Issuer pursuant to this Section for any increased costs incurred more than 270 days prior to
the date that such Lender or such LC Issuer, as the case may be, notifies the Borrower of the
circumstances giving rise to such increased costs and of such Lender’s or such LC Issuer’s
intention to claim compensation therefor; provided further that, if the
circumstance giving rise to such increased costs is retroactive, then the 270-day period referred
to above shall be extended to include the period of retroactive effect thereof.




SECTION 2.11. Illegality.



(a) 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.


 


26









 





(b) If a Conversion occurs or the obligation of the Lenders to make Eurodollar Rate Advances
or to Convert Revolving Credit Advances into Eurodollar Rate Advances is suspended, in each case,
pursuant to Section 2.11(a), then the Lender causing such Conversion and/or suspension shall use
reasonable efforts to designate a different Applicable Lending Office for funding or booking its
Revolving Credit Advances hereunder or to assign its rights and obligations hereunder to another of
its offices, branches or affiliates, if, in the judgment of such Lender, such designation or
assignment (i) would reinstate the Lenders’ obligations to make Eurodollar Rate Advances and to
Convert Revolving Credit Advances into Eurodollar Rate Advances and (ii) would not subject such
Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such
Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender
in connection with any such designation or assignment.



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, interest, Facility Fees or
LC Fees 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 Assumption 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 Assumption, 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 Assumption shall
make all appropriate adjustments in such payments for periods prior to such effective date directly
between themselves.



(b) The Borrower hereby authorizes each Lender 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, when such computations of the Base
Rate are based on the Prime 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 Base Rate (other than such
computations of the Base Rate that are based on the Prime Rate), of interest based on the
Eurodollar Rate, of the Facility Fees and of the LC Fees 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, such Facility Fees or such
LC Fees are payable. Each determination by the Agent of an interest rate hereunder shall be
conclusive and binding for all purposes, absent manifest error.




 


27











 




(d) Whenever any payment hereunder or under the Notes shall be stated to be due on a day other
than a Business Day, such payment shall be made on the next succeeding Business Day, and such
extension of time shall in such case be included in the computation of payment of interest,
Facility Fee or LC 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, fees,
assessments, duties, charges or withholdings, and all liabilities with respect thereto,
excluding, in the case of each Lender, each LC Issuer and the Agent, (i) any and all
present or future taxes, levies, imposts, deductions, fees, assessments, duties, charges or
withholdings imposed on its net income, and franchise taxes imposed on it in lieu of net income
taxes, (x) 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 (y), 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 and (ii) any United States withholding taxes
imposed by FATCA (all such non-excluded taxes, levies, imposts, deductions, fees, assessments,
duties, charges, withholdings and liabilities in respect of payments hereunder or under the Notes
being hereinafter referred to as “Taxes”). Notwithstanding the above, if the Borrower
shall be required by law to deduct any Taxes from or in respect of any sum payable hereunder or
under any Note to any Lender, 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”).


 


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(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 Assumption pursuant to which it becomes a Lender in
the case of each other Lender, and from time to time thereafter as requested in writing by the
Borrower (but only so long as such Lender remains lawfully able to do so), shall provide each of
the Agent and the Borrower with two original Internal Revenue Service Form W-8BEN or W-8ECI, as
appropriate, or any successor or other form prescribed by the Internal Revenue Service, certifying
that such Lender is exempt from United States withholding tax on payments pursuant to this
Agreement or the Notes. If any form or document referred to in this subsection (e) requires the
disclosure of information, other than information necessary to compute the tax payable and
information required on the date hereof by Internal Revenue Service Form W-8BEN or W-8ECI, that the
Lender reasonably considers to be confidential, the Lender shall give notice thereof to the
Borrower and shall not be obligated to include in such 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) If a payment made to a Lender hereunder would be subject to United States withholding tax
imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements
of FATCA (including those contained in Section 1471(b) or 1472(b) of the Internal Revenue Code, as
applicable), such Lender shall deliver to the Borrower and the Agent at the time or times
prescribed by law and at such time or times reasonably requested by the Borrower or the Agent such
documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of
the Internal Revenue Code) and such additional documentation reasonably requested by the Borrower
or the Agent as may be necessary for the Borrower and the Agent to comply with their obligations
under FATCA and to determine that such Lender has or has not complied with such Lender’s
obligations under FATCA or to determine the amount to deduct and withhold from such payment.
Solely for purposes of this
clause (f), “FATCA” shall include any amendments made to FATCA after the date of this
Agreement.


 


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(g) 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, fees, assessments, duties, 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.



(h) 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.



(i) 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 $3,500 administrative fee.



(j) 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.



(k) If the Borrower is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to this Section 2.13, then such Lender shall use
reasonable efforts to designate a different Applicable Lending Office for funding or booking its
Revolving Credit Advances hereunder or to assign its rights and obligations hereunder to another of
its offices, branches or affiliates, if, in the judgment of such Lender, such designation or
assignment (i) would eliminate or reduce amounts payable pursuant to this Section 2.13 in the
future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender. The Borrower hereby
agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any
such designation or assignment.


 


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(l) Each Lender shall severally indemnify the Agent for any taxes, levies, imposts,
deductions, fees, assessments, duties, charges or withholdings, and all liabilities with respect
thereto, (but, in the case of any Taxes or Other Taxes, only to the extent that the Borrower has
not already indemnified the Agent for such Taxes or Other Taxes and without limiting the obligation
of the Borrower to do so) attributable to such Lender that are paid or payable by the Agent in
connection with this Agreement and any reasonable expenses arising therefrom or with respect
thereto, whether or not such amounts were correctly or legally imposed or asserted by the relevant
Governmental Authority. The indemnity under this Section 2.13(l) shall be paid within 30 days
after the Agent delivers to the applicable Lender a certificate stating the amount so paid or
payable by the Agent. Such certificate shall be conclusive of the amount so paid or payable absent
manifest error.



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 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 refinancing Debt of the Borrower under the Existing
Credit Agreement (if any), and for general corporate purposes, including commercial paper
liquidity, of the Borrower and its Subsidiaries.


 


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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 stated amount of all
outstanding Facility LCs issued by such LC Issuer shall not exceed 1/6 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 (the “Existing Letters of Credit”) 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
Existing Letters of Credit), 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.


 


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(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 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.


 


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(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, 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. No LC Issuer shall have any obligation to issue any Facility LC
if (i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms
purport to enjoin or restrain such LC Issuer from issuing such Facility LC, or any applicable law
or any request or directive (whether or not having the force of law) from any Governmental
Authority with jurisdiction over such LC Issuer shall prohibit, or request that such LC Issuer
refrain from, the issuance of letters of credit generally or such Facility LC in particular or
shall impose upon such LC Issuer with respect to such Facility LC any restriction, reserve or
capital requirement (for which such LC Issuer is not otherwise compensated hereunder) not in effect
on the Effective Date, or shall impose upon such LC Issuer any unreimbursed loss, cost or expense
which was not applicable on the Effective Date and which such LC Issuer in good faith deems
material to it, or (ii) the issuance of such Facility LC would violate one or more policies of such
LC Issuer applicable to letters of credit generally.


 


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(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.



(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
Assumption 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.


 


35









 





(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. Defaulting Lenders. Notwithstanding any provision of this Agreement to
the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply
for so long as such Lender is a Defaulting Lender:



(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting
Lender pursuant to Section 2.03(a);



(b) the Commitment and Outstanding Credit Exposure of such Defaulting Lender shall not be
included in determining whether the Required Lenders have taken or may take any action hereunder
(including any consent to any amendment or waiver pursuant to Section 8.01, other than those which
require the consent of all Lenders or of each affected Lender);




(c) if any LC Obligations exist at the time such Lender becomes a Defaulting Lender, then:




(i) so long as no Default or Event of Default has occurred and is continuing, all or
any part of the LC Obligations shall be reallocated among the non-Defaulting Lenders in
accordance with their respective Pro Rata Shares but only to the extent the sum of all
non-Defaulting Lenders’ LC Obligations plus such Defaulting Lender’s LC Obligations does not
exceed the total of all non-Defaulting Lenders’ Commitments and the sum of all
non-Defaulting Lenders’ Outstanding Credit Exposure plus such Defaulting Lender’s LC
Obligations does not exceed the total of all non-Defaulting Lenders’ Commitments;




(ii) if the reallocation described in clause (i) above cannot, or can only partially,
be effected, the Borrower shall within one Business Day following notice by the Agent, cash
collateralize for the benefit of the LC Issuers only the Borrower’s obligations
corresponding to such Defaulting Lender’s LC Obligations (after giving effect to any partial
reallocation pursuant to clause (i) above) by depositing funds in the Facility LC Collateral
Account for so long as such LC Obligations are outstanding;


 


36









 






(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC
Obligations pursuant to clause (ii) above, the Borrower shall not be required to pay any
Facility Fees or LC Fees with respect to such Defaulting Lender’s LC Obligations during the
period such Defaulting Lender’s LC Obligations are cash collateralized;




(iv) if the LC Obligations of the non-Defaulting Lenders are reallocated pursuant to
clause (i) above, then the LC Fees payable to the Lenders pursuant to Section 2.03(c) shall
be adjusted in accordance with such non-Defaulting Lenders’ Pro Rata Shares; and




(v) if all or any portion of such Defaulting Lender’s LC Obligations is neither cash
collateralized nor reallocated pursuant to clause (i) or (ii) above, then, without prejudice
to any rights or remedies of the LC Issuers or any Lender hereunder, all Facility Fees that
otherwise would have been payable to such Defaulting Lender pursuant to Section 2.03(a)
(solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized
by such LC Obligations) and LC Fees payable to such Defaulting Lender pursuant to Section
2.03(c) with respect to such Defaulting Lender’s LC Obligations shall be payable to the LC
Issuers until such LC Obligations are cash collateralized and/or reallocated;



(d) so long as such Lender is a Defaulting Lender, no LC Issuer shall be required to issue or
Modify any Facility LC, unless it is satisfied that the related exposure will be 100% covered by
the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the
Borrower in accordance with Section 2.18(c), and participating interests in any such newly issued
or Modified Facility LC shall be allocated among non-Defaulting Lenders in a manner consistent with
Section 2.18(c)(i) (and Defaulting Lenders shall not participate therein);



(e) the Borrower may, subject to the requirements of Sections 8.04 and 8.07, substitute for
such Defaulting Lender another financial institution, which financial institution shall be an
Eligible Assignee and shall assume the Commitments of such Defaulting Lender and purchase the
Outstanding Credit Exposures held by such Defaulting 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 Defaulting 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 $3,500 administrative fee;



(f) to the extent the Agent receives any payments or other amounts for the account of a
Defaulting Lender under the Loan Documents, such Defaulting Lender shall be deemed to have
requested that the Agent use such payment or other amount to fulfill such Defaulting Lender’s
previously unsatisfied obligations to fund a Revolving Credit Advance or any other unfunded payment
obligation of such Defaulting Lender under Section 2.02(d), 2.12(e), 2.16(d) or 7.05;



(g) no Lender shall be deemed to have consented to increase its Commitment pursuant to Section
2.04(c) unless that Lender shall have affirmatively given consent in accordance with that Section;
and


 


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(h) for the avoidance of doubt, the Borrower shall retain and reserve its other rights and
remedies respecting each Defaulting Lender.



If (i) a Bankruptcy Event with respect to a parent of any Lender shall occur following the
date hereof and for so long as such event shall continue or (ii) any LC Issuer has a good faith
belief that any Lender has defaulted in fulfilling its obligations under one or more other
agreements in which such Lender commits to extend credit, such LC Issuer shall not be required to
Modify any Facility LC, unless such LC Issuer shall have entered into arrangements with the
Borrower or such Lender, reasonably satisfactory to such LC Issuer to defease any risk to it in
respect of such Lender hereunder.



In the event that the Agent, the Borrower and the LC Issuers each agrees that a Defaulting
Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then
the LC Obligations shall be readjusted to reflect the inclusion of such Lender’s Commitment and on
such date such Lender shall purchase at par on a ratable basis such of the Outstanding Credit
Exposures of the other Lenders as the Agent shall determine may be necessary in order for such
Lender to hold such Outstanding Credit Exposures in accordance with its Pro Rata Share, whereupon
such Lender shall cease to be a Defaulting Lender. For the purposes of clarity, in the event any
Defaulting Lender is reinstated as a non-Defaulting Lender in accordance with the terms hereof (i)
no adjustments will be made retroactively with respect to fees accrued or payments made by or on
behalf of the Borrower while such Lender was a Defaulting Lender, and (ii) except to the extent
otherwise expressly agreed by the affected parties, such reinstatement shall not constitute a
waiver or release of any claim of any party hereunder arising from such Lender having been a
Defaulting Lender.



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 (i) no Material Adverse Change since December 31, 2010, except
as shall have been disclosed or contemplated in the SEC Reports, and (ii) no material adverse
change in the primary or secondary loan syndication markets or capital markets generally that makes
it impracticable to consummate the transactions contemplated by the Loan Documents.



(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.


 


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(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 due and payable to
the Agents, the Lenders and the Arrangers on or prior to the Effective Date, including, to the
extent invoiced, reimbursements or payment of all out-of-pocket expenses required to be reimbursed
or paid by the Borrower hereunder.



(f) On the Effective Date, the following statements shall be true and the Agent shall have
received for the account of each Lender a certificate, substantially in the form of Exhibit
D hereto, signed on behalf of the Borrower by a duly authorized Financial Officer of the
Borrower, dated the Effective Date, stating, among other things, that:




(i) The representations and warranties contained in Section 4.01 are correct on and as
of the Effective Date, and




(ii) No event has occurred and is continuing that constitutes a Default.



(g) The Agent shall have received on or before the Effective Date the following, each dated
such day, in form and substance satisfactory to the Agent and (except for any Notes requested by
the Lenders) in sufficient copies for each Lender:




(i) Counterpart signature pages of this Agreement, executed by each of the parties
hereto.




(ii) Notes, if any, to the order of each Lender requesting the issuance of a Note as of
the Effective Date pursuant to Section 2.17.




(iii) 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.




(iv) 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.




(v) Favorable opinion letters of Patrick B. Carey, the Associate General Counsel of the
Borrower, and Hunton & Williams LLP, counsel to the Borrower, substantially in the form of
Exhibits E-1 and E-2, respectively, hereto.




(vi) Evidence satisfactory to the Agent that (A) all loans and letters of credit
outstanding and other fees and amounts owed to the lenders or agents under the Terminating
Agreements have been paid in full (or, in respect of any letters of credit thereunder, (x)
such letters of credit shall have been assigned or transferred to this Agreement (such that
each such letter of credit shall constitute a Facility LC hereunder)
or (y) cash collateral or other credit support in respect thereof shall have been
delivered), and (B) the Terminating Agreements have been terminated.


 


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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) or (y) Section 4.01(f),




(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 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.


 


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(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, copies of each of which have
been furnished to each Lender, fairly present, in all material respects, 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. Since
December 31, 2010, 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.


 


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(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 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, required to be registered as 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) Neither the Borrower nor any Subsidiary of the Borrower (i) is a person named on the list
of “Specially Designated Nationals” or “Blocked Persons” maintained by The Office of Foreign Assets
Control of the United States Department of the Treasury (the “OFAC”) available at
http://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/default.aspx, or as otherwise
published from time to time; or (ii) is (x) an agency of the government of a country, (y) an
organization controlled by a country, or (z) a person resident in a country that is subject to a
sanctions program identified on the list maintained by the OFAC and available at
http://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/default.aspx, or as otherwise
published from time to time, as such program may be applicable to such agency, organization or
person; or (iii) derives more than 10% of its assets or operating income from investments in
or transactions with any such country, agency, organization or person. Neither the Borrower nor
any Subsidiary of the Borrower will use the proceeds of the Revolving Credit Advances to finance
any operations, investments or activities in, or make any payments to, any such country, agency,
organization, or person.


 


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(p) Neither the Borrower nor any Subsidiary of the Borrower (i) is under investigation by any
Governmental Authority for, or has been charged with, or convicted of, money laundering, drug
trafficking, terrorist-related activities, or any violation under any laws or regulations relating
to money laundering or terrorist financing, including the Bank Secrecy Act, 31 U.S.C. §§5311 et.
seq. (the “Anti-Money Laundering Laws”), (ii) has been assessed civil penalties under any
Anti-Money Laundering Laws, or (iii) has had any of its funds seized or forfeited in an action
under any Anti-Money Laundering Laws.



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 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.


 


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(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 Agent (and the Agent shall use
commercially reasonable efforts to promptly furnish copies thereof to the Lenders via IntraLinks or
other similar password-protected restricted internet site):




(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) to the extent provided to shareholders of the Borrower, a copy of
the annual report to such shareholders for such year for the Borrower and its Consolidated
Subsidiaries, (B) the Consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as of the end of such fiscal year and (C) the Consolidated statements of income
and cash flows of the Borrower and its Subsidiaries for such fiscal year, in each case
accompanied by an opinion by PricewaterhouseCoopers LLP or any other independent public
accounting firms which (x) as of the date of this Agreement is one of the “big four”
accounting firms or (y) is reasonably acceptable to the Required Lenders;




(iii) together with the financial statements required under clauses (i) or (ii) above,
a compliance certificate in substantially the form of Exhibit F signed by a
Financial Officer of the Borrower showing the then current information and calculations
necessary to determine the Applicable Margin and the Applicable Percentage 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;


 


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(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;




(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; and




(vii) promptly, but within five (5) Business Days of such change, written notice to the
Agent of each change to the Borrower’s Moody’s Rating and S&P Rating.



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 www.dteenergy.com (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
http://phx.corporate-ir.net/phoenix.zhtml?c=68233&p=irol-alerts, or at www.sec.gov 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
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 Moody’s; provided, in each case, that no Default shall have
occurred and be continuing at the time of such proposed transaction or would result therefrom.


 


45









 





(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), 2.18(c)(ii), 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 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


 


46









 





(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 (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


 


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(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;
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.



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.


 


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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 Assumption 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 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.


 


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SECTION 7.05. Indemnification. The Lenders agree to indemnify the Agent (to the
extent not reimbursed by the Borrower), solely in its capacity as Agent hereunder, ratably
according to the respective principal amounts of their respective Outstanding Credit Exposures (or
if the Aggregate Outstanding Credit Exposures are zero or if no 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, solely in its capacity as 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. Upon any such resignation, 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, 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, the provisions of this Article VII shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Agent under this Agreement.



SECTION 7.07. Co-Syndication Agents and Documentation Agent. None of the Lenders
identified in this Agreement as a Co-Syndication Agent or a 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.


 


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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 rate of 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, (h) amend any provisions hereunder relating to the pro rata
treatment of the Lenders, or (i) 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 One Energy Plaza, Detroit, MI 48226, Attention: Treasurer; if
to any LC Issuer or any Lender, at its Domestic Lending Office; and if to the Agent, at its address
at 1615 Brett Road, OPS 3 New Castle, Delaware 19720, Attention: Charles Huester, with a copy to J.
Nicholas McKee, 388 Greenwich Street, New York, New York 10013; or, as to the Borrower or the
Agent, at such other address as shall be designated by such party in a written notice to the other
parties and, as to each other party, at such other address as shall be designated by such party in
a written notice to the Borrower and the Agent. All such notices and other communications (i)
sent by hand or overnight courier service, or mailed by certified or registered mail, shall be
deemed to have been given when received or (ii) sent by telecopier shall be deemed to have been
given when sent, provided that if not given during normal business hours for the recipient,
shall be deemed to have been given at the opening of business on the next Business Day for the
recipient. Notwithstanding the foregoing, all such notices and communications to the Agent
pursuant to Article II, III or VII shall not be deemed to have been given 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.


 


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(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 it 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 oploanswebadmin@citigroup.com, 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 or any Lender 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 it for purposes of 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 the Borrower 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. Each Lender 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 the
Communications have been posted to the Platform shall constitute effective delivery of the
Communications to such Lender for purposes of the Loan Documents. Each Lender agrees (A) to notify
the Agent in writing (including by electronic communication) from time to time of such Lender’s
e-mail address to which the foregoing notice may be sent by electronic transmission and (B) that
the foregoing notice may be sent to such e-mail address.


 


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(iii) Each party hereto agrees that any electronic communication referred to in this clause
(b) shall be deemed delivered upon the posting of a record of such Communication as “sent” in the
e-mail system of the sending party or, in the case of any such Communication to the
Agent or any Lender, upon the posting of a record of such Communication as “received” in the
e-mail system of the Agent or such Lender; provided, however, that if such
Communication is received by the Agent or such Lender after the normal business hours of the Agent
or such Lender, such Communication shall be deemed delivered at the opening of business on the next
Business Day for the Agent or such Lender; provided, further, that in the event
that the Agent’s or such Lender’s e-mail system shall be unavailable for receipt of any
Communication, Borrower may deliver such Communication to the Agent or such Lender in a manner
mutually agreeable to the Agent or such Lender, as applicable, and the Borrower.



(iv) The parties hereto acknowledge and agree 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. EACH OF THE PARTIES HERETO
ACKNOWLEDGES AND AGREES AS FOLLOWS: (A) THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE”; (B)
THE AGENT PARTIES DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS, OR THE
ADEQUACY OF THE PLATFORM AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE
COMMUNICATIONS; (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 THE AGENT PARTIES IN
CONNECTION WITH THE COMMUNICATIONS OR THE PLATFORM; AND (D) IN NO EVENT SHALL THE AGENT OR ANY OF
ITS AFFILIATES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ADVISORS OR
REPRESENTATIVES (COLLECTIVELY, THE “AGENT PARTIES”) HAVE ANY LIABILITY TO THE BORROWER, ANY
LENDER OR ANY OTHER PERSON OR ENTITY FOR DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, DIRECT
OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT,
CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWER’S OR THE AGENT’S TRANSMISSION OF COMMUNICATIONS
THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY AGENT PARTY IS FOUND IN A FINAL
NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED PRIMARILY FROM SUCH
AGENT PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.



(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.


 


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SECTION 8.04. Costs and Expenses; Damage Waiver. (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 (i) all reasonable out-of-pocket expenses incurred by the LC Issuers in connection
with the issuance or Modification of and draws under Facility LCs, and (ii) 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, 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.


 


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(c) If any payment or reallocation 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(a), 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 8.04 shall survive
the payment in full of principal, interest and all other amounts payable hereunder and under the
Notes.



(e) To the extent permitted by applicable law, the Borrower shall not assert, and hereby
waives, any claim against any Indemnified Party (i) for any damages arising from the use by others
of information or other materials obtained through telecommunications, electronic or other
information transmission systems (including the internet), or (ii) on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or
any agreement or instrument contemplated hereby or thereby, any of the transactions contemplated in
any Loan Document, any Revolving Credit Advance or Letter of Credit or the use of the proceeds
thereof.



(f) To the extent permitted by applicable law, none of the Agent, the LC Issuers or the
Lenders shall assert, and each of the Agent, the LC Issuers and the Lenders hereby waives, any
claim against the Borrower on any theory of liability, for special, indirect, consequential or
punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as
a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated
hereby or thereby, any of the transactions contemplated in any Loan Document, any Revolving Credit
Advance or Letter of Credit or the use of the proceeds thereof; provided that, nothing
contained in this paragraph shall limit the Borrower’s reimbursement and indemnity obligations set
forth in this Section 8.04. For the avoidance of doubt, all payments to which the Agent,
the LC Issuers and the Lenders are expressly entitled under this Agreement, including without
limitation amounts due under Sections 2.10, 2.11 and 2.13, if demanded in
accordance with the terms of this Agreement, shall be deemed direct and not consequential damages.



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.


 


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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) or an assignment to any other Lender, an Affiliate of a Lender, or an Approved Fund), (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 provided, in any event, that the Borrower
shall be deemed to have consented to any such assignment unless it shall object thereto by written
notice to Agent within ten (10) days after having received notice thereof, and which consent shall
not be required in the event of an assignment or grant pursuant to Sections 8.07(g) or (h) or an
assignment to any other Lender, an Affiliate of a Lender, or an Approved Fund), and (iii) with the
prior consent of the LC Issuers (which consent shall not be unreasonably withheld, and which
consent shall not be required in the event of an assignment or grant pursuant to Section 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, (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
Assumption 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 Assumption, together with any Note
subject to such assignment and a processing and recordation fee of $3,500, which fee may be waived
by the Agent in its sole discretion if such assignment is to an Affiliate of the assigning Lender.
Upon such execution,
delivery, acceptance and recording, from and after the effective date specified in each
Assignment and Assumption, (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
Assumption, 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 Assumption, relinquish its rights and be released from its
obligations under this Agreement (and, in the case of an Assignment and Assumption 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).


 


56









 





(b) By executing and delivering an Assignment and Assumption, 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 Assumption, 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 Assumption; (iv) such assignee will, independently and without reliance upon the Agent, such
assigning Lender or any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or not taking action
under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such
assignee appoints and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers and discretion under this Agreement as are delegated to the Agent by the terms
hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii)
such assignee agrees that it will perform in accordance with their terms all of the obligations
that by the terms of this Agreement are required to be performed by it as a Lender.



(c) Upon its receipt of an Assignment and Assumption 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 Assumption has been completed and is in
substantially the form of Exhibit C hereto, (i) accept such Assignment and Assumption, (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 Assumption 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 Assumption and shall otherwise
be in substantially the form of Exhibit A hereto.


 


57









 





(d) The Agent shall maintain at its address referred to in Section 8.02 a copy of each
Assignment and Assumption 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(a) and 2.13 to the same
extent as if it were a Lender and had acquired its interest under this Agreement by an assignment
made pursuant to this Section 8.07, provided, however, that (i) such participant
complies with the requirements of Section 2.13(e) and (ii) in no event shall the Borrower be
obligated to make any payment with respect to such Sections that is greater than the amount that
the Borrower would have otherwise made had no participations been sold under this Section 8.07(e)
(it being understood that the documentation required under Section 2.13(e) shall be delivered to
the participating Lender). Each Lender that sells a participation shall, acting solely for this
purpose as an agent of the Borrower, maintain a register on which it enters the name and address of
each participant and the principal amounts (and stated interest) of each participant’s interest in
the obligations under this Agreement (the “Participant Register”); provided that no Lender
shall have any obligation to disclose all or any portion of the Participant Register to any Person
(including the identity of any participant or any information relating to a participant’s interest
in the obligations under this Agreement) except to the extent that such disclosure is necessary to
establish that such interest is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall
be conclusive absent manifest error, and such Lender shall treat each person whose name is recorded
in the Participant Register as the owner of such participation for all purposes of this Agreement
notwithstanding any notice to the contrary.


 


58









 





(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 Person (other than the Borrower or an Affiliate of the Borrower), including,
without limitation, 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
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.


 


59









 





(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
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, (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, and (g)
subject to an agreement containing provisions substantially the same as those of this Section, (x)
to any credit or financial insurance provider in connection with the Borrower’s obligations
hereunder, and (y) to any Person that requires such Confidential Information in connection with
obtaining CUSIP-based identifiers.


 


60









 





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 the Borough of
Manhattan in the county of New York, 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.


 


61









 





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.



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.



SECTION 8.14. Severability. In the event any one or more of the provisions contained
in this Agreement should be held invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall not in any way be
affected or impaired thereby.



SECTION 8.15. No Advisory or Fiduciary Responsibility. In connection with all aspects
of each transaction contemplated hereby (including in connection with any amendment, waiver or
other modification hereof or of any other Loan Document or any syndication of the credit facility
provided hereunder), the Borrower acknowledges and agrees that: (i) (A) the arranging and other
services regarding this Agreement provided by the Agents and the Arrangers are arm’s-length
commercial transactions between the Borrower and its Affiliates, on the one hand, and the Agents
and the Arrangers, and each of their respective Affiliates, on the other hand, (B) it has consulted
its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and
(C) it is capable of evaluating, and understands and accepts, the terms, risks and conditions of
the transactions contemplated hereby and by the other Loan Documents; (ii) (A) each of the Agents,
the Arrangers and the Borrower has been acting solely as a principal and, except as expressly
agreed in writing by the relevant parties, has not been, is not, and will not be acting as an
advisor, agent or fiduciary for any other party hereto, any Affiliates of any other party hereto,
or any other Person and (B) none of the Agents, the Arrangers or the Borrower has any obligation to
each other or to their respective Affiliates with respect to the transactions contemplated hereby
except those obligations expressly set forth herein and in the other Loan Documents; and (iii) the
Agents, the Arrangers and their respective Affiliates may be engaged in a broad range of
transactions that involve interests that differ from those of the Borrower and its Affiliates, and
none of the Agents or the Arrangers has any obligation to disclose any of such interests to the
Borrower or its Affiliates. To the fullest extent permitted by law, the Agents, the Arrangers and
the Borrower hereby waive and release any claims that they may have against each other with respect
to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any
transaction contemplated hereby.
Each of the Agent and the Lenders acknowledges and agrees that it has consulted its own legal,
accounting, regulatory and tax advisors to the extent it has deemed appropriate.



Remainder of Page Intentionally Blank



 


62









 





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: 38-3217752	 	 





Signature Page to

DTE Energy Company

Amended and Restated Five-Year Credit Agreement




 


 









 







	 	 	 	 	 
	 	Lenders



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

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	JPMORGAN CHASE BANK, N.A., as an LC Issuer and as a Lender

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	BARCLAYS BANK PLC, as an LC Issuer and as a Lender

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	THE BANK OF NOVA SCOTIA, as an LC Issuer and as a Lender

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	THE ROYAL BANK OF SCOTLAND plc, as an LC Issuer and as a Lender

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Signature Page to

DTE Energy Company

Amended and Restated Five-Year Credit Agreement





 


 









 







	 	 	 	 	 
	 	BANK OF AMERICA, N.A., as an LC Issuer and as a Lender

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Signature Page to

DTE Energy Company

Amended and Restated Five-Year Credit Agreement





 


 









 







	 	 	 	 	 
	 	[OTHER LENDERS], as a Lender

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Signature Page to

DTE Energy Company

Amended and Restated Five-Year Credit Agreement




 


 









 





	 	 	 	 	 
	 	Each of the undersigned Departing Lenders hereby

acknowledges and agrees that, from and after the

Effective Date, it is no longer a party to the

Existing Credit Agreement and will not be a party

to this Agreement


[DEPARTING LENDER], as a Departing Lender

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Signature Page to

DTE Energy Company

Amended and Restated 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.

	 	1615 Brett Road

OPS 3

New Castle, DE 19720

Attention: Charles Huester

Telephone: (302) 864-6010

Facsimile: (212) 816-8098
	 	388 Greenwich St.,

New York, NY 10013

Attention: Nick Perazza

Telephone: (302) 894-6110

Facsimile: (212) 994-0847
	 	 	 	$	92,888,888.89	 
	Barclays Bank PLC

	 	745 Seventh Avenue, 26th
Floor

New York, NY 10019

Attention: Alicia Borys/Zivile Zekaite

Telephone: (212) 320-6136

Facsimile: (917) 522-0569
	 	Same as Domestic Lending

Office
	 	 	 	$	92,888,888.89	 
	JPMorgan Chase Bank, N.A.

	 	JPMorgan Chase Bank, N.A.

10 South Dearborn Street

Mail Code IL1-0010

Chicago, IL 60603

Attention: Non-Agented Servicing Team

Telephone: (312) 385-7072

Facsimile: (312) 256-2608
	 	Same as Domestic Lending

Office
	 	 	 	$	92,888,888.89	 
	Bank of America, N.A.

	 	100 North Tryon Street

NC1-007-17-18

Charlotte, NC 28255

Attention: Patrick Martin

Telephone: (980) 388-6894

Facsimile: (415) 503-5058
	 	Same as Domestic Lending

Office
	 	 	 	$	78,222,222.22	 
	The Bank of Nova Scotia

	 	1 Liberty Plaza, Floors 23-26

165 Broadway

New York, NY 10006

Attention: Benjamin Thomas

Telephone: (212) 225-5178 

Facsimile: (212) 225-5355
	 	Same as Domestic Lending

Office
	 	 	 	$	78,222,222.22	 
	The Royal Bank of
Scotland plc

	 	600 Washington Boulevard

Stamford, CT 06901

Attention: Emily Freedman

Telephone: (203) 897-3749
	 	Same as Domestic Lending

Office
	 	 	 	$	78,222,222.22	 
	BNP Paribas

	 	787 Seventh Avenue

New York, NY 10019

Attention: Project Finance & Utilities

Telephone: (212) 841-2000

Facsimile: (212) 841-2146
	 	Same as Domestic Lending

Office
	 	 	 	$	58,055,555.56	 
	The Bank of New York
Mellon

	 	BNY Mellon Center, Rm 3600

500 Grant Street

Pittsburgh, PA 15258-0001

Attention: Hussam S. Alsahlani

Telephone: (412) 234-5624

Telecopier: (412) 236-6112
	 	Same as Domestic Lending

Office
	 	 	 	$	58,055,555.56	 






 


 









 





	 	 	 	 	 	 	 	 	 	 	 
	Name of Initial Lender	 	Domestic Lending Office	 	Eurodollar Lending Office	 	 	 	Commitment
	Deutsche Bank AG New
York Branch

	 	60 Wall Street, 44th Floor

New York, NY 10005

Attention: Philippe Sandmeier

Telephone: (212) 250-8232

Telecopier: (646) 403-4413
	 	Same as Domestic Lending

Office
	 	 	 	$	58,055,555.56	 
	KeyBank National
Association

	 	127 Public Square

Cleveland, OH 44114

Attention: Marianne Meil

Telephone: (216) 689-3549

Facsimile: (216) 689-4981
	 	Same as Domestic Lending

Office
	 	 	 	$	58,055,555.56	 
	UBS Loan Finance LLC

	 	677 Washington Boulevard

Stamford, CT 06901

Attention: Wendy Field 
Telephone: (203) 719-5239 

Facsimile: (203) 719-3888
	 	Same as Domestic Lending

Office
	 	 	 	$	58,055,555.56	 
	Union Bank, N.A.

	 	Energy Capital Services

445 South Figuroa St.,
15th Floor

Los Angeles, CA 90071

Attention: Jesus Serrano

Telephone: (213) 236-4194

Facsimile: (213) 236-4096
	 	Same as Domestic Lending

Office
	 	 	 	$	58,055,555.56	 
	Comerica Bank

	 	3551 Hamlin Rd

Auburn Hills, MI 48326

Attention: Kimberly Kersten

Telephone: (248) 371-6704

Facsimile: (248) 371-6815
	 	Same as Domestic Lending

Office
	 	 	 	$	45,833,333.33	 
	Fifth Third Bank

	 	710 Seminole Road

MD R17061

Norton Shores, MI 49441

Attention: Randy Wolffis

Telephone: (231) 733-5006

Fascimile: (231) 739-7430
	 	Same as Domestic Lending

Office
	 	 	 	$	39,722,222.22	 
	Wells Fargo Bank, N.A.

	 	90 S. 7th Street

MAC N9305-077

Minneapolis, MN 55402

Attention: Scott Bjelde

Telephone: (612) 667-6126

Facsimile: (612) 316-0506
	 	Same as Domestic Lending

Office
	 	 	 	$	39,722,222.22	 
	The Huntington National
Bank

	 	41 South High Street (HC0735)

Columbus, OH 43215

Attention: Joseph A Tonges

Telephone: (614) 480-3722

Telecopier: (877) 274-8593
	 	Same as Domestic Lending

Office
	 	 	 	$	24,444,444.44	 
	U.S. Bank National
Association

	 	800 Nicollet Mall

Minneapolis, MN 55402

461 Fifth Avenue

New York, NY 10017

Attention: Michael Sagges

Telephone: (917) 256-2822 

Facsimile: (646) 935-4552
	 	Same as Domestic Lending

Office
	 	 	 	$	24,444,444.44	 






 


 









 





	 	 	 	 	 	 	 	 	 	 	 
	Name of Initial Lender	 	Domestic Lending Office	 	Eurodollar Lending Office	 	 	 	Commitment
	The Northern Trust 

Company

	 	50 South LaSalle Street

Chicago, IL 60603

Attention: Philip McCaulay

Telephone: (312) 557-2816

Facsimile: (312) 557-1425
	 	Same as Domestic Lending

Office
	 	 	 	$	24,444,444.44	 
	SunTrust Bank

	 	303 Peachtree St., 4th Floor

Atlanta, GA 30308

Attention: Andrew Johnson

Telephone: (404) 658-4692

Facsimile: (404) 827-6270
	 	Same as Domestic Lending

Office
	 	 	 	$	24,444,444.44	 
	Morgan Stanley Bank, N.A.


	 	One Utah Center

201 South Main Street
5th Floor

Salt Lake City, UT 84111

Telephone: (801) 236-3655

Facsimile: (718) 233-0967
	 	Same as Domestic Lending

Office
	 	 	 	$
	15,277,777.78
	


	 	 	 	 	 	 	 	 	 	 
	
TOTAL

	 	
	 	
	 	 	 	
$	
1,100,000,000.00	


	 	 	 	 	 	 	 	 	 	 







 


 









 







SCHEDULE II




EXISTING LETTERS OF CREDIT




[Attached]




 


 









 







PRICING SCHEDULE




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Level I	 	 	Level II	 	 	Level III	 	 	Level IV	 	 	Level V	 	 	Level VI	 
	 	 	Status	 	 	Status	 	 	Status	 	 	Status	 	 	Status	 	 	Status	 
	Applicable
Percentage
	 	 	0.100	%	 	 	0.125	%	 	 	0.175	%	 	 	0.225	%	 	 	0.275	%	 	 	0.375	%
	Applicable LC Fee
Rate
	 	 	0.90	%	 	 	1.00	%	 	 	1.075	%	 	 	1.275	%	 	 	1.475	 	 	 	1.625	%
	Applicable Margin
(Eurodollar Rate)
	 	 	0.90	%	 	 	1.00	%	 	 	1.075	%	 	 	1.275	%	 	 	1.475	%	 	 	1.625	%
	Applicable Margin
(Base Rate)
	 	 	0.00	%	 	 	0.00	%	 	 	0.075	%	 	 	0.275	%	 	 	0.475	%	 	 	0.625	%






For the purposes of this Schedule, the following terms have the following meanings, subject to
the final paragraph of this Schedule:



“Level I Status” exists at any date if, on such date, the Borrower’s Moody’s Rating is A2 or
better or the Borrower’s S&P Rating is A or better.



“Level II Status” exists at any date if, on such date, (i) the Borrower has not qualified for
Level I Status and (ii) the Borrower’s Moody’s Rating is A3 or better or the Borrower’s S&P Rating
is A- or better.



“Level III Status” exists at any date if, on such date, (i) the Borrower has not qualified for
Level I Status or Level II Status and (ii) the Borrower’s Moody’s Rating is Baa1 or better or the
Borrower’s S&P Rating is BBB+ or better.



“Level IV Status” exists at any date if, on such date, (i) the Borrower has not qualified for
Level I Status, Level II Status or Level III Status and (ii) the Borrower’s Moody’s Rating is Baa2
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
Moody’s Rating is Baa3 or better or the Borrower’s S&P Rating is BBB- 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.



“Moody’s Rating” means, at any time, the rating issued by Moody’s and then in effect with
respect to the Borrower’s senior unsecured long-term debt securities without third-party credit
enhancement.


 


 









 





“S&P Rating” means, at any time, the rating issued by S&P and then in effect with respect to
the Borrower’s senior unsecured long-term debt securities without third-party credit enhancement.



“Status” means Level I Status, Level II Status, Level III Status, Level IV Status, Level V
Status or Level VI Status.



The Applicable Margin, 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 Moody’s 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 Moody’s Rating and an S&P Rating, Level VI Status shall exist;
provided, however, that if the credit rating system of Moody’s 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, the pricing shall be based upon (x) the higher of the two ratings then
applicable if all such ratings shall be in Level I Status, Level II Status, Level III Status, Level
IV Status or Level V Status and (y) the lower of the two ratings if any of such ratings shall be in
Level VI Status. However, if (x) the split is greater than one level and the lowest rating shall
be in Level III Status, Level IV Status or Level V Status, then the pricing shall be based upon the
rating one level above the lower of the two ratings and (y) the split is greater than one level and
the lowest rating shall be in Level VI Status, then pricing shall be based upon Level VI Status.


 


 









 






EXHIBIT A — FORM OF NOTE




			
	 	 	 
	U.S.$                                        
	 	Dated:
                                        , 20_____








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 Amended and Restated
Five-Year Credit Agreement dated as of October 21, 2011 (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 1615 Brett Road, OPS 3, New Castle, Delaware 19720, Account No.
36852248, Attention: Charles Huester, in same day funds. Each Revolving Credit Advance owing to
the Lender by the Borrower pursuant to the Credit Agreement, and all payments made on account of
principal thereof, shall be recorded by the Lender and, prior to any transfer hereof, endorsed on
the grid attached hereto which is part of this Promissory Note.



This Promissory Note is one of the Notes referred to in, and is entitled to the benefits of,
the Credit Agreement. The Credit Agreement, among other things, (i) provides for the making of
Revolving Credit Advances by the Lender to the Borrower from time to time in an aggregate amount
not to exceed at any time outstanding the U.S. dollar amount first above mentioned, the
indebtedness of the Borrower resulting from each such Revolving Credit Advance being evidenced by
this Promissory Note, and (ii) contains provisions for acceleration of the maturity hereof upon the
happening of certain stated events and also for prepayments on account of principal hereof prior to
the maturity hereof upon the terms and conditions therein specified.



	 	 	 	 	 
	 	DTE ENERGY COMPANY

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 



 


 









 





	 	 	 	 	 



ADVANCES AND PAYMENTS OF PRINCIPAL




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Unpaid	 	 	 	 
	 	 	Amount of	 	 	Amount of Principal	 	 	Principal	 	 	 	 
	Date	 	Advance	 	 	Paid or Prepaid	 	 	Balance	 	 	Notation Made By	 






 


 









 





EXHIBIT B — FORM OF NOTICE OF BORROWING




Citibank, N.A., as Agent for the Lenders parties

     to the Credit Agreement referred to below




1615 Brett Road

OPS 3

New Castle, Delaware 19720

Attention: Charles Huester




[Date]




Ladies and Gentlemen:



The undersigned, DTE ENERGY COMPANY, refers to the Amended and Restated Five-Year Credit
Agreement dated as of October 21, 2011 (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, and (y) Section
4.01(f) 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 ASSUMPTION




ASSIGNMENT AND ASSUMPTION





This Assignment and Assumption (the “Assignment and Assumption”) is dated as
of the Effective Date set forth below and is entered into by and between [Insert name of Assignor]
(the “Assignor”) and [Insert name of Assignee] (the “Assignee”). Capitalized terms
used but not defined herein shall have the meanings given to them in the Credit Agreement
identified below (as amended, the “Credit Agreement”), receipt of a copy of which is hereby
acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached
hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment
and Assumption as if set forth herein in full.



For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to
and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the
Effective Date inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s
rights and obligations in its capacity as a Lender under the Credit Agreement and any other
documents or instruments delivered pursuant thereto to the extent related to the amount and
percentage interest identified below of all of such outstanding rights and obligations of the
Assignor under the respective facilities identified below (including any letters of credit and
guarantees included in such facilities) and (ii) to the extent permitted to be assigned under
applicable law, all claims, suits, causes of action and any other right of the Assignor (in its
capacity as a Lender) against any Person, whether known or unknown, arising under or in connection
with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the
loan transactions governed thereby or in any way based on or related to any of the foregoing,
including contract claims, tort claims, malpractice claims, statutory claims and all other claims
at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i)
above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii) above being
referred to herein collectively as the “Assigned Interest”). Such sale and assignment is
without recourse to the Assignor and, except as expressly provided in this Assignment and
Assumption, without representation or warranty by the Assignor.



	 	 	 	 	 
	1.

	 	Assignor:
	 	                                        
	 
	 	 	 	 
	2.

	 	Assignee:
	 	                                        

[and is an Affiliate/Approved Fund of [identify Lender]1]
	 
	 	 	 	 
	3.

	 	Borrower(s):
	 	DTE Energy Company
	 
	 	 	 	 
	4.

	 	Administrative Agent:
	 	Citibank, N.A., as the
administrative agent under the
Credit Agreement





 





	 	 	 
	1	 	Select as applicable.



 


 









 









	 	 	 	 	 
	5.

	 	Credit Agreement:
	 	The Amended and Restated
Five-Year Credit Agreement dated
as of October 21, 2011 among DTE
Energy Company, the Lenders
parties thereto, Citibank, N.A.,
as Administrative Agent, and the
other agents parties thereto
	 
	 	 	 	 
	6.

	 	Assigned Interest:	 	 






	 	 	 	 	 	 	 	 	 
	Aggregate Amount of	 	Amount of	 	 	Percentage Assigned	 
	Commitment/Loans	 	Commitment/	 	 	of	 
	for all Lenders	 	Loans Assigned	 	 	Commitment/Loans2	 
	$
	 	$	 	 	 	 	 	%
	$
	 	$	 	 	 	 	 	%
	$
	 	$	 	 	 	 	 	%






Effective
Date: _____ _____, 20_____ 

[TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL
BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]



The terms set forth in this Assignment and Assumption are hereby agreed to:



	 	 	 	 	 	 	 
	 	 	ASSIGNOR	 	 
	 
	 	 	 	 	 	 
	 	 	[NAME OF ASSIGNOR]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Title:
	 	 
	 
	 	 	 	 	 	 
	 	 	ASSIGNEE	 	 
	 
	 	 	 	 	 	 
	 	 	[NAME OF ASSIGNEE]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Title:
	 	 






	 	 	 	 	 
	[Consented to and]3 Accepted:	 	 
	 
	 	 	 	 
	CITIBANK, N.A., as Administrative Agent and LC Issuer	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Title:
	 	 





 





	 	 	 
	2	 	Set forth, to at least 9 decimals, as a percentage of
the Commitment/Loans of all Lenders thereunder.
	 
	3	 	To be added only if the consent of the Administrative
Agent is required by the terms of the Credit Agreement.



 


 









 









	 	 	 	 	 
	[Consented to:]4	 	 
	 
	 	 	 	 
	[OTHER LC ISSUERS], as an LC Issuer	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Title:
	 	 
	 
	 	 	 	 
	[Consented to:]5	 	 
	 
	 	 	 	 
	DTE ENERGY COMPANY	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Title:
	 	 






 








	 	 	 
	4	 	To be added only if the consent of the LC Issuers is
required by the terms of the Credit Agreement.
	 
	5	 	To be added only if the consent of the Borrower is
required by the terms of the Credit Agreement.



 


 









 









ANNEX I




STANDARD TERMS AND CONDITIONS FOR




ASSIGNMENT AND ASSUMPTION





1. Representations and Warranties.



1.1 Assignor. The Assignor (a) represents and warrants that (i) it is the legal and
beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any
lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken
all action necessary, to execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with the Credit Agreement or any
other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial
condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in
respect of any Loan Document or (iv) the performance or observance by the Borrower, any of its
Subsidiaries or Affiliates or any other Person of any of their respective obligations under any
Loan Document.



1.2. Assignee. The Assignee (a) represents and warrants that (i) it has full power
and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption 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 the Assigned Interest 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 the Assigned Interest, shall have the
obligations of a Lender thereunder, and (iv) it has received a copy of the Credit Agreement,
together with copies of the most recent financial statements delivered pursuant to Section 5.01
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 Assignment and Assumption and to
purchase the Assigned Interest on the basis of which it has made such analysis and decision
independently and without reliance on the Administrative Agent or any other Lender; and (b) agrees
that (i) it will, independently and without reliance on the Administrative 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 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.



2. Payments. From and after the Effective Date, the Administrative Agent shall make
all payments in respect of the Assigned Interest (including payments of principal, interest, fees
and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective
Date and to the Assignee for amounts which have accrued from and after the Effective Date.



3. General Provisions. This Assignment and Assumption shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and assigns. This
Assignment and Assumption may be executed in any number of counterparts, which together shall
constitute one instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a manually executed
counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed
by, and construed in accordance with, the law of the State of New York.


 


 









 





EXHIBIT D — FORM OF CERTIFICATE BY BORROWER




DTE ENERGY COMPANY

THE DETROIT EDISON COMPANY

MICHIGAN CONSOLIDATED GAS COMPANY

OFFICER’S CERTIFICATE




I, David R. Murphy, Assistant Treasurer of DTE ENERGY COMPANY (“DTE”), THE DETROIT EDISON
COMPANY (“DECO”) and MICHIGAN CONSOLIDATED GAS COMPANY (“MichCon”), each a Michigan corporation
(each a “Borrower” and collectively the “Borrowers”), DO HEREBY CERTIFY, pursuant to Section 3.01
of each of (i) the Amended and Restated Five-Year Credit Agreement (the “DTE Credit
Agreement”), dated as of October 21, 2011, 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 Amended and Restated Five-Year Credit Agreement (the “DECO Credit
Agreement”), dated as of October 21, 2011, among DECO, the financial institutions from time to
time parties thereto as “Lenders” and Barclays Bank PLC (“Barclays”), as agent for said
Lenders, and (iii) the Amended and Restated Five-Year Credit Agreement (the “MichCon Credit
Agreement”, and, together with the DTE Credit Agreement and the DECO Credit Agreement, the
“Credit Agreements”), dated as of October 21, 2011, 2011, among MichCon, the financial
institutions from time to time parties thereto as “Lenders” and JPMorgan Chase Bank, N.A.
(“JPMCB”), as agent for said Lenders, that the terms defined in the Credit Agreements are
used herein as therein defined and, further, that:




1. The Effective Date shall be October 21, 2011.



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 outstanding under the
Terminating Agreements and all fees and amounts owed to the lenders or agents thereunder have been
paid in full (or, in respect of any letters of credit thereunder, such letters of credit have been
assigned or transferred to the DTE Credit Agreement (such that each such letter of credit
constitutes a “Facility LC” thereunder)).


 


 









 





Dated as of the
 _____ 

day of
 _____, 2011.



	 	 	 	 	 	 	 
	 	 	DTE ENERGY COMPANY	 	 
	 	 	THE DETROIT EDISON COMPANY	 	 
	 	 	MICHIGAN CONSOLIDATED GAS COMPANY	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name: David R. Murphy
	 	 
	 

	 	 	 	Title: Assistant Treasurer	 	 






 


 









 





EXHIBIT E-1 — FORM OF

OPINION OF ASSOCIATE GENERAL COUNSEL TO THE BORROWER




October 21, 2011




To each of the Lenders party to the

Credit Agreement defined below



DTE Energy Company




Ladies and Gentlemen:



This opinion is furnished to you pursuant to Section 3.01(g)(v) of the Amended and Restated
Five-Year Credit Agreement (the “Credit Agreement”), dated as of October 21, 2011, among
DTE Energy Company (the “Borrower”), the financial institutions from time to time parties
thereto as “Lenders” and Citibank, N.A. (the “Agent”), as agent for said Lenders. Terms
defined in the Credit Agreement are used herein as therein defined.



I am the Associate General Counsel of the Borrower and have acted as counsel for the Borrower
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 the Borrower pursuant to Article III of the
Credit Agreement.




(iii) The Restated Articles of Incorporation of the Borrower and all amendments thereto
(the “Charter”).




(iv) The Bylaws of the Borrower and all amendments thereto (the “Bylaws”).




(v) A certificate from the State of Michigan attesting to the continued corporate
existence and good standing of the Borrower.



In addition, I have examined the originals or copies certified to my satisfaction, of such other
corporate records of the Borrower, certificates of public officials and of officers of the
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 the
Credit Agreement by the Lenders and the 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. The Borrower 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 the Borrower of the Loan Documents to which it
is party, and the consummation of the transactions contemplated thereby, are within the Borrower’s
corporate powers, have been duly authorized by all necessary corporate action, and do not
contravene (i) the Charter or the Bylaws, (ii) any law, rule or regulation applicable to the
Borrower, or (iii) any contractual restriction binding on or affecting the 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 the Borrower of the Loan Documents to
which it is a party.



4. The Credit Agreement has been, and each of the Notes when delivered will have been, duly
executed and delivered on behalf of the Borrower.



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 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 or (ii) purport to affect the
legality, validity, or enforceability of any Loan Documents to which the 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 the 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 the Credit Agreement, 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 Loan Documents would be, under the laws of
the State of Michigan, legal, valid and binding obligations of the Borrower, enforceable against
the Borrower in accordance with their respective terms.



8. Neither the Borrower nor any of its 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;


 


 









 






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
Agreement 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 & WILLIAMS LLP




	 
	October 21, 2011







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)(v) of each of (i) the Amended and
Restated Five-Year Credit Agreement (the “DTE Credit Agreement”), dated as of October 21,
2011, 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,
(ii) the Amended and Restated Five-Year Credit Agreement (the “DECO Credit Agreement”),
dated as of October 21, 2011, among The Detroit Edison Company (“DECO”), the financial
institutions from time to time parties thereto as “Lenders” and Barclays Bank PLC
(“Barclays”), as agent for said Lenders, and (iii) the Amended and Restated Five-Year
Credit Agreement (the “MichCon Credit Agreement”, and, together with the DTE Credit
Agreement and the DECO Credit Agreement, the “Credit Agreements”), dated as of October 21,
2011, among Michigan Consolidated Gas Company (“MichCon”), the financial institutions from
time to time parties thereto as “Lenders” and JPMorgan Chase Bank, N.A. (“JPMCB”), as agent
for said Lenders. 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. §§ 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 § 510, a New York State court may have
discretion to transfer the place of trial, and under 28 U.S.C. §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 Amended and Restated
Five-Year Credit Agreement, dated as of October 21, 2011 (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







 


 









 







EXHIBIT G — FORM OF

LENDER SUPPLEMENT




LENDER SUPPLEMENT




Dated ____________ ____, 20___




Reference is made to that certain Amended and Restated Five-Year Credit Agreement, dated as of
October 21, 2011 (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”), and Citibank, N.A., as agent for the Lenders (the “Agent”).
Unless otherwise defined herein, capitalized terms used in this Lender Supplement have the meanings
ascribed thereto in the Credit Agreement.



Pursuant to Section 2.04(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 5.01 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 the Credit Agreement; 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.]6


 






	 	 	 
	6	 	To be included only in a Lender Supplement for a new
Lender.




 


 









 





[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, solely with
respect to the representations and warranties set forth in (x) the last sentence of Section 4.01(e)
of the Credit Agreement and (y) Section 4.01(f) of the Credit Agreement, shall be made only as of
the “Effective Date” (as such term is defined in 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:

	 	 

	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	[OTHER LC ISSUERS],	 	 
	as an LC Issuer	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	Title:

	 	 

	 	 
	 

	 	 

	 	 






 


 









 









	 	 	 	 	 	 	 
	COMMITMENT	 	ACCEPTING BANK	 	 
	 
	 	 	 	 	 	 
	$

	 	[BANK]	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 







 


 









 







EXHIBIT H — FORM OF

CONVERSION NOTICE




CONVERSION NOTICE




Dated ____________ ____, 20___




Reference is made to that certain Amended and Restated Five-Year Credit Agreement, dated as of
October 21, 2011 (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”), and Citibank, N.A., as agent for the Lenders (the “Agent”).
Unless otherwise defined herein, capitalized terms used in this Lender Supplement have the meanings
ascribed thereto in the Credit Agreement.



Pursuant to Section 2.08 of the Credit Agreement, the Borrower hereby gives notice of its
intent to Convert the Revolving Credit Advances comprising the following Borrowing(s) on dates set
forth below:




	 	(a)	 	Date of Borrowing:
 _____ 



Outstanding principal amount of Borrowing:
 _____ 



Current Type (Base Rate/Eurodollar Rate):
 _____ 



Requested Type (Base Rate/Eurodollar Rate):
 _____ 



Interest Period (if converted Type is Eurodollar Rate):
 _____ 



Requested date of Conversion:
 _____ 


	 
	 	(b)	 	Date of Borrowing:
 _____ 



Outstanding principal amount of Borrowing:
 _____ 



Current Type (Base Rate/Eurodollar Rate):
 _____ 



Requested Type (Base Rate/Eurodollar Rate):
 _____ 



Interest Period (if converted Type is Eurodollar Rate):
 _____ 



Requested date of Conversion:
 _____ 







IN WITNESS WHEREOF, the Borrower has caused this Conversion Notice to be executed by its
officer thereunto duly authorized, as of the date first above written.



	 	 	 	 	 	 	 
	 	 	DTE ENERGY COMPANY, as the Borrower	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 






 


 









 





EXHIBIT I — FORM OF

PREPAYMENT NOTICE




PREPAYMENT NOTICE




Dated ____________ ____, 20___




Reference is made to that certain Amended and Restated Five-Year Credit Agreement, dated as of
October 21, 2011 (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”), and Citibank, N.A., as agent for the Lenders (the “Agent”).
Unless otherwise defined herein, capitalized terms used in this Lender Supplement have the meanings
ascribed thereto in the Credit Agreement.



Pursuant to Section 2.09 of the Credit Agreement, the Borrower hereby gives notice of its
intent to prepay the outstanding principal amount of the Revolving Credit Advances relating to the
following Borrowing(s) in the following amounts:




	 	1)	 	Date of Borrowing:
 _____ 



Outstanding principal amount of Borrowing:
 _____ 



Type (Base Rate/Eurodollar Rate):
 _____ 



Aggregate principal amount of prepayment: $_____ 


	 
	 	2)	 	Date of Borrowing:
 _____ 



Outstanding principal amount of Borrowing:
 _____ 



Type (Base Rate/Eurodollar Rate):
 _____ 



Aggregate principal amount of prepayment: $_____ 







IN WITNESS WHEREOF, the Borrower has caused this Prepayment Notice to be executed by its
officer thereunto duly authorized, as of the date first above written.



	 	 	 	 	 	 	 
	 	 	DTE ENERGY COMPANY, as the Borrower	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Title: