Key Employe Deferred Compensation Plan - DTE ENERGY CO - 2-24-1998

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EXHIBIT 10.12 KEY EMPLOYE DEFERRED COMPENSATION PLAN January, 1990 The Key Employe Deferred Compensation Plan ("Plan"), initiated in 1964, is designed to supplement pension benefits available to certain management employees under the Employes' Retirement Plan. Basic Awards may be made to eligible individuals effective each December 31. ADMINISTRATION The Organization and Compensation Committee ("Committee") of the Board of Directors administers the Plan and is responsible for all future awards hereunder without further action by the Board of Directors. The Committee has the authority to interpret the Plan's provisions and prescribe any regulations relating to its administration. ELIGIBILITY Participation (subject to award eligibility requirements) in the Plan is restricted to the following employes: Frank E. Agosti Stanley G. Catola Malcolm G. Dade, Jr. Ronald W. Gresens Willard R. Holland Wesley D. Kappler Sheldon M. Lutz Robert V. Nicolson William S. Orser Frederick L. Petersen J. James Roosen Mahmud U. Syed B. Ralph Sylvia S. Martin Taylor James H. Tuttle Maurice L. Vermeulen Richard C. Viinikainen Saul J. Waldman Morley A. Wassermann Participants must be age 50 or older to be eligible to receive basic awards. CALCULATION OF BASIC AWARD AMOUNTS For Plan years beginning 1989, participants will receive basic awards of one percent (1%) of the total base salary paid or accrued during full months for which the eligibility criteria have been met; provided, however, that in the event the Committee certifies to the Paymaster a different award (or no award) by December 31, then such certified amount shall prevail. For example, assume an individual earns $10,000 per month and reaches age 50 on July 1. The award amount would be calculated for such year as follows: .01 X $10,000 X 6 = $600.00 For example, assume an individual earns $10,000 per month and reaches age 50 on July 1. The award amount would be calculated for such year as follows: .01 X $10,000 X 6 = $600.00 CALCULATION OF SUPPLEMENTAL AWARD AMOUNTS In addition to the Basic Awards, Supplemental Awards are calculated and paid monthly at the same time as Basic Awards are paid. The amount of each Supplemental Award is the sum of: (A) 1/12 of the balance of total unpaid Basic Awards granted prior to 1981 times the average prime interest rate of the National Bank of Detroit for the preceding month less 1%, PLUS (B) 1/12 of the balance of total unpaid Basic Awards granted after 1980 times the lesser of (i) the average prime interest rate of the National Bank of Detroit for the preceding month less 1%, or (ii) 10%. For example, assume an individual terminates employment on January 1, 1993 and has received Basic Awards as follows: 1978 1979 1980 1981 1982 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 $500 600 700 800 900 1,000 1,100 1,200 1,300 1,400 1,500 1,600 1,700 1,800 1,900 Total annual Basic Awards are $18,000 per year and total unpaid Basic Awards are $18,000 x 15 = $270,000. Assume that the average prime interest rate for December 1992 is 13%. The Basic Award for January 1993 would be $18,000 12 = $1,500 and the Supplemental Award for January 1993 would be $27,000 x 12% 12 = $270 plus $243,000 x 10% 12 = $2,025, for a total Supplemental Award of $2,295. The total award for the first month would therefore be $1,500 + $2,295 = $3,795. Assume that the average prime interest rate for January 1993 was 10%. The Basic Award for February 1993 would be $1,500 and the Supplemental Award would be ($27,000 - $150) x 9% 12 = $201.38 plus ($243,000 - $1,350) x 9% 12 = $1,812.38, for a total Supplemental Award of $2,013.76. The total award would therefore be $1,500 + $2,013.76 = $3,513.76. 2 AWARDS Awards under this Plan are not considered earnings for purposes of the Employe Savings Plan, the Employes' Retirement Plan, insurance or other employe benefit programs including, but not limited to, the Executive Incentive Plan. Note, however, that under certain circumstances awards granted after January 1, 1984 may be subject to the Federal Insurance Contributions Act ("F.I.C.A.") tax. The amount of Basic Award grants is prorated for individuals who have met the eligibility criteria during a given year but whose employment is terminated for any reason during such year. AWARDS Awards under this Plan are not considered earnings for purposes of the Employe Savings Plan, the Employes' Retirement Plan, insurance or other employe benefit programs including, but not limited to, the Executive Incentive Plan. Note, however, that under certain circumstances awards granted after January 1, 1984 may be subject to the Federal Insurance Contributions Act ("F.I.C.A.") tax. The amount of Basic Award grants is prorated for individuals who have met the eligibility criteria during a given year but whose employment is terminated for any reason during such year. PAYMENT OF AWARDS Basic Awards are paid to participants in monthly installments for a period of 15 years after termination of employment, commencing in the first full month after termination. In other words, if an individual's 1984 Deferred Compensation Plan award were $1,000 then that individual would be entitled to receive $83.33 per month ($1,000 per year) for a period of 15 years following termination of employment. Supplemental Awards are calculated, added to and paid at the same time as Basic Awards. If a participant should die prior to receipt of the full amount of all awards, the remaining balance of unpaid Basic Awards plus Supplemental Awards are paid to the participant's designated beneficiary or estate on the same monthly basis as if paid to the participant. At the election of the participant, payments to a designated beneficiary may be made monthly over a shorter period or in a lump sum. AMENDMENT OR TERMINATION The Company reserves the right to amend, modify, supplement or terminate the Plan at any time, provided, however, that no such amendment, modification, supplement or termination shall adversely affect the right of any participant (or such participant's beneficiary) to receive benefits theretofore accrued, without such person's prior written amount. Notwithstanding the foregoing, no amendment, modification, supplement or termination may be made after the occurrence of a Change in Control, as defined in Addendum I, that shall adversely affect the rights of any person who is receiving or upon termination would thereupon be entitled to receive a benefit under the Plan, without such person's prior written consent. The foregoing does not preclude voluntary waiver of benefits by a participant or beneficiary or a deemed waiver of benefits by a participant pursuant to Addendum I. CHANGE-IN-CONTROL BENEFIT FOR CERTAIN PERSONS Notwithstanding the foregoing provisions of the Plan, a participant who has entered into a Change-in-Control Severance Agreement with DTE Energy Company ("Change-in-Control Severance Agreement") shall receive a benefit as provided in Addendum I to the Plan upon termination of employment in certain circumstances following a Change in Control, as defined in Addendum I. In addition, any participant or beneficiary receiving a benefit under the Plan at the time of the occurrence of a Change in Control, as defined in Addendum I, shall receive payment as provided in Addendum I. If a benefit is payable to a participant or any beneficiary pursuant to Addendum I, neither the participant or any beneficiary thereof, shall be entitled to any payments or further payments, as the case may be, under the foregoing provisions of the Plan. 3 ADDENDUM I CHANGE-IN-CONTROL BENEFITS A change in control ("Change in Control") for purposes of the Plan and this Addendum I shall have occurred if at any time on or after October 1, 1997 any of the following events shall occur: (1) DTE Energy Company ("DTE") is merged, consolidated or reorganized into or with another corporation or ADDENDUM I CHANGE-IN-CONTROL BENEFITS A change in control ("Change in Control") for purposes of the Plan and this Addendum I shall have occurred if at any time on or after October 1, 1997 any of the following events shall occur: (1) DTE Energy Company ("DTE") is merged, consolidated or reorganized into or with another corporation or other legal person, and as a result of such merger, consolidation or reorganization less than 55% of the combined voting power of the then-outstanding securities of such corporation or person immediately after such transaction is held in the aggregate by the holders of the then-outstanding securities entitled to vote generally in the election of directors (the "Voting Stock") of DTE immediately prior to such transaction; (2) DTE sells or otherwise transfers all or substantially all of its assets to another corporation or other legal person, and as a result of such sale or transfer, less 55% of the combined voting power of the then-outstanding Voting Stock of such corporation or person immediately after such sale or transfer is held in the aggregate (directly or through ownership of Voting Stock of DTE or a Subsidiary (as hereinafter defined)) by the holders of Voting Stock of DTE immediately prior to such sale or transfer; (3) There is a report filed on Schedule 13D or Schedule 14D-1 (or any successor schedule, form or report), each as promulgated pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), disclosing that any person (as the term "person" is used in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) has become the beneficial owner (as the term "beneficial owner" is defined under Rule 13d-3 or any successor rule or regulation promulgated under the Exchange Act) of securities representing 20% or more of the combined voting power of the then-outstanding Voting Stock of DTE; (4) If, during any period of two consecutive years, individuals who at the beginning of any such period constitute the directors of DTE cease for any reason to constitute at least a majority thereof; provided, however, that for purposes of this paragraph (4) each director who is first elected, or first nominated for election, by DTE's stockholders, by a vote of at least two-thirds of the directors of DTE (or a committee thereof) then still in office who were directors of DTE at the beginning of any such period will be deemed to have been a director of DTE at the beginning of such period; or (5) The approval of the shareholders of DTE of a complete liquidation or dissolution of DTE. Notwithstanding the foregoing provisions of paragraph (3) above, unless otherwise determined in a specific case by majority vote of the Board of Directors of DTE, a "Change in Control" shall not be deemed to have 4 occurred for purposes of paragraph (3) solely because (i) DTE, (ii) an entity in which DTE directly or indirectly beneficially owns 50% or more of the outstanding Voting Stock (a "Subsidiary"), or (iii) any DTE-sponsored employee stock ownership plan or any other employee benefit plan of DTE or any Subsidiary either files or becomes obligated to file a report or a proxy statement under or in response to Schedule 13D or Schedule 14D-1 (or any successor schedule, form or report or item therein) under the Exchange Act disclosing beneficial ownership by it of shares of Voting Stock, whether in excess of 20% or otherwise. In the event a Change in Control occurs, any participant or beneficiary thereof who as of the date of the occurrence of the Change in Control is receiving benefits under the Plan shall be paid in cash in a lump sum an amount equal to the actuarial equivalent present value of the remaining benefits, determined as of the date of payment, that are payable to or in respect of such person under the Plan (including survivor benefits, if applicable). In the event a Change in Control occurs, any participant who has entered into a Change-in-Control Severance Agreement and whose employment is terminated after the occurrence of the Change in Control in circumstances entitling the individual to severance compensation under Section 4 of the Change-in-Control Severance occurred for purposes of paragraph (3) solely because (i) DTE, (ii) an entity in which DTE directly or indirectly beneficially owns 50% or more of the outstanding Voting Stock (a "Subsidiary"), or (iii) any DTE-sponsored employee stock ownership plan or any other employee benefit plan of DTE or any Subsidiary either files or becomes obligated to file a report or a proxy statement under or in response to Schedule 13D or Schedule 14D-1 (or any successor schedule, form or report or item therein) under the Exchange Act disclosing beneficial ownership by it of shares of Voting Stock, whether in excess of 20% or otherwise. In the event a Change in Control occurs, any participant or beneficiary thereof who as of the date of the occurrence of the Change in Control is receiving benefits under the Plan shall be paid in cash in a lump sum an amount equal to the actuarial equivalent present value of the remaining benefits, determined as of the date of payment, that are payable to or in respect of such person under the Plan (including survivor benefits, if applicable). In the event a Change in Control occurs, any participant who has entered into a Change-in-Control Severance Agreement and whose employment is terminated after the occurrence of the Change in Control in circumstances entitling the individual to severance compensation under Section 4 of the Change-in-Control Severance Agreement shall be entitled to a cash lump sum payment under the Plan; provided, however, that if the participant is eligible for and would be entitled to a lump sum payment under the terms of the Management Supplemental Benefit Plan ("MSBP") sponsored by The Detroit Edison Company that is greater than the lump sum payment to which the participant would be entitled under this Plan as determined in this Addendum I, then the participant shall be deemed to have elected to participate in the MSBP and waived his or her right to any benefit under this Plan including under this Addendum I. The amount of lump sum payment payable hereunder shall be equal to the actuarial equivalent present value of the benefit that would otherwise be payable to the participant under the Plan determined as otherwise provided in the Plan but with the following modification: (1) For any Plan Year ending after the occurrence of the Change in Control the participant's Basic Award under "Calculation of Basic Award Amounts" shall be no less than one percent (1%) of the participant's total base salary paid or accrued during full months for which the eligibility criteria have been met; provided, however, that for a participant who has met the eligibility criteria during the Plan year but whose employment is terminated during such year, the amount of Basic Award shall be credited at termination and shall be equal to not less than one percent (1%) of the participant's total base salary paid or accrued during the full months prior to termination. Upon the foregoing payment, no further benefits shall be payable under the Plan to such participant or beneficiary thereof. Payments under this Addendum I shall be made within 30 days after the date on which the Change in Control occurs or, if later, the date the participant terminates employment. For purposes of this Addendum I, (a) Basic Awards are deemed to have been deposited in a phantom account. 5 (b) Any participant or beneficiary receiving benefits at the time of the Change in Control will receive a cash lump sum equal to the balance of the phantom account. (c) Any eligible participant terminated after a Change in Control will receive a cash lump sum payment under the Plan equal to the current phantom account balance (15 times the Basic Awards credited to the account plus the Basic Award determined in paragraph (1) above). 6 EXHIBIT 10.13 EXECUTIVE INCENTIVE PLAN EFFECTIVE OCTOBER 27, 1997 (b) Any participant or beneficiary receiving benefits at the time of the Change in Control will receive a cash lump sum equal to the balance of the phantom account. (c) Any eligible participant terminated after a Change in Control will receive a cash lump sum payment under the Plan equal to the current phantom account balance (15 times the Basic Awards credited to the account plus the Basic Award determined in paragraph (1) above). 6 EXHIBIT 10.13 EXECUTIVE INCENTIVE PLAN EFFECTIVE OCTOBER 27, 1997 OVERVIEW The Executive Incentive Plan ("Plan") supplements possible annual financial incentives provided under the Shareholder Value Improvement Plan - A for eligible members of Detroit Edison Company's ("Company") senior management. It rewards such employees for the accomplishment of financial and strategic objectives that improve DTE Energy Company's ("DTE") operating results and positions DTE for long term profitability. Recipients of Plan awards may, under specified conditions, defer the payment of awards. The Plan measures calendar year performance. The current year's targets, measures and weights will be communicated annually following approval. ADMINISTRATION The Organization and Compensation Committee ("Committee") of the Detroit Edison Board of Directors ("Board of Directors") is Plan Administrator with responsibility for the administration of the Plan. The Committee has the authority to interpret the provisions of the Plan and prescribe any regulations relating to its administration. The decisions of the Committee with respect to the administration of the Plan made prior to the occurrence of a Change in Control, as defined herein, shall be conclusive. The Committee, on an annual basis, will review and, if appropriate, recommend to the Board of Directors for approval, the specific criteria for eligibility, the type and timing of awards and the manner of payment of awards (current and/or deferred), the performance measures and related weights to be used in computing award amounts and amounts in the Performance Fund, as defined herein, and the performance levels for each performance measure. The Board of Directors reserves the right to amend, suspend or terminate the Plan at any time (See "Awards"); provided, however, that on or after the occurrence of a Change in Control, as defined herein, no amendment, suspension or termination of the Plan may be made that adversely affects the rights of any person without his or her prior written consent. Current awards calculated under the terms of the Plan are not payable until such time as the Board of Directors' approval has been granted; provided, however, that notwithstanding the foregoing or any other provision of the Plan, after a Change in Control, as defined herein, such approval is not required with respect to awards thereafter payable in respect of any Plan year ending prior to the occurrence of the Change in Control. The Board of Directors reserves the right to reduce or cancel any awards that might otherwise be made if, in its sole discretion, it determines that the performance achieved is not indicative of an improvement in DTE's overall performance. If such a determination is made, the Plan may be canceled or substantially modified with the result of terminating or decreasing any awards that might otherwise be made hereunder. Notwithstanding the foregoing or any other provision of the Plan, no award in respect of a Plan year ending prior to the occurrence of a Change in Control, as defined herein, may be reduced or canceled, nor may the Plan be so canceled or substantially modified, following the occurrence of a Change in Control. 1 EXHIBIT 10.13 EXECUTIVE INCENTIVE PLAN EFFECTIVE OCTOBER 27, 1997 OVERVIEW The Executive Incentive Plan ("Plan") supplements possible annual financial incentives provided under the Shareholder Value Improvement Plan - A for eligible members of Detroit Edison Company's ("Company") senior management. It rewards such employees for the accomplishment of financial and strategic objectives that improve DTE Energy Company's ("DTE") operating results and positions DTE for long term profitability. Recipients of Plan awards may, under specified conditions, defer the payment of awards. The Plan measures calendar year performance. The current year's targets, measures and weights will be communicated annually following approval. ADMINISTRATION The Organization and Compensation Committee ("Committee") of the Detroit Edison Board of Directors ("Board of Directors") is Plan Administrator with responsibility for the administration of the Plan. The Committee has the authority to interpret the provisions of the Plan and prescribe any regulations relating to its administration. The decisions of the Committee with respect to the administration of the Plan made prior to the occurrence of a Change in Control, as defined herein, shall be conclusive. The Committee, on an annual basis, will review and, if appropriate, recommend to the Board of Directors for approval, the specific criteria for eligibility, the type and timing of awards and the manner of payment of awards (current and/or deferred), the performance measures and related weights to be used in computing award amounts and amounts in the Performance Fund, as defined herein, and the performance levels for each performance measure. The Board of Directors reserves the right to amend, suspend or terminate the Plan at any time (See "Awards"); provided, however, that on or after the occurrence of a Change in Control, as defined herein, no amendment, suspension or termination of the Plan may be made that adversely affects the rights of any person without his or her prior written consent. Current awards calculated under the terms of the Plan are not payable until such time as the Board of Directors' approval has been granted; provided, however, that notwithstanding the foregoing or any other provision of the Plan, after a Change in Control, as defined herein, such approval is not required with respect to awards thereafter payable in respect of any Plan year ending prior to the occurrence of the Change in Control. The Board of Directors reserves the right to reduce or cancel any awards that might otherwise be made if, in its sole discretion, it determines that the performance achieved is not indicative of an improvement in DTE's overall performance. If such a determination is made, the Plan may be canceled or substantially modified with the result of terminating or decreasing any awards that might otherwise be made hereunder. Notwithstanding the foregoing or any other provision of the Plan, no award in respect of a Plan year ending prior to the occurrence of a Change in Control, as defined herein, may be reduced or canceled, nor may the Plan be so canceled or substantially modified, following the occurrence of a Change in Control. 1 The Treasurer will be responsible for making award payments, for establishing and maintaining the deferred accounts for award recipients, and for maintaining all necessary records regarding the valuation and payment of awards. The Vice President-Human Resources will assist the Committee in the development, administration and communication of the Plan. ELIGIBILITY Any person who is elected to the position of Vice President and above at Detroit Edison (i.e., senior The Treasurer will be responsible for making award payments, for establishing and maintaining the deferred accounts for award recipients, and for maintaining all necessary records regarding the valuation and payment of awards. The Vice President-Human Resources will assist the Committee in the development, administration and communication of the Plan. ELIGIBILITY Any person who is elected to the position of Vice President and above at Detroit Edison (i.e., senior management) and who holds and actively performs in one or more such eligible positions for a total of at least seven months during the Plan year will become eligible to participate in the Plan. "Hold and actively perform" excludes all temporary assignments. Any key employee of Detroit Edison may be designated by the Committee to become a participant in the Plan. Participants' performance must be considered at least satisfactory or equivalent for the applicable calendar year to be eligible to receive an award under the Plan. Employees of the Company are not eligible to participate in the Plan if they are eligible to participate in any other Company incentive program other than the Long Term Incentive Plan and the Shareholder Value Improvement Plan - A. Exceptions to the eligibility criteria may be authorized by the Board of Directors. Participation in the Plan does not guarantee continued employment with the Company. PLAN YEAR The Plan year will be a calendar year. AWARD OPPORTUNITY Awards, if any, will be payable from a fund ("Performance Fund") established by multiplying the base salary (including applicable amounts deferred under Company-sponsored benefit plans) of each otherwise eligible participant as of the last day of the payroll year by a target percent of salary by position and then by a percent based upon the achievement of specific performance measures and combining such individual amounts into one collective fund. PERFORMANCE MEASURES, LEVELS AND WEIGHTS The target percentages, measures of performance and weights applicable to each Plan year will be communicated annually to all eligible employees. AWARDS Award amounts will be payable from the Performance Fund and will be granted, in the sole discretion of the Board of Directors, to otherwise eligible participants, in such amounts, if any, as are determined to be appropriate by the Board of Directors. Awards under the Plan are not considered basic compensation for purposes of the Company's qualified and nonqualified savings plans, the Company's qualified and non-qualified retirement plans, insurance 2 or any other Company-sponsored qualified or non-qualified employee benefit programs. AWARD PAYMENT No awards will be paid under this Plan if no awards are paid under the Shareholder Value Improvement Plan - A or any other Company-sponsored qualified or non-qualified employee benefit programs. AWARD PAYMENT No awards will be paid under this Plan if no awards are paid under the Shareholder Value Improvement Plan - A regardless of whether other terms and conditions are met. Annual awards, if any, will be paid as soon as practicable following approval by the Board of Directors unless deferred as permitted herein. Eligible participants will be permitted to defer the payment of 50% to 100% of an approved award that is payable prior to the occurrence of a Change in Control, as defined herein, for a period of from one to five years ("Deferred Awards"). A Deferred Award Account will be established for each award recipient with a timely Deferral Notice on file with the Company. For the calendar year during which this Plan is adopted, deferrals must be irrevocably submitted within 30 calendar days of the date of adoption. Thereafter, deferrals must be irrevocably submitted prior to the commencement of the Plan year during which the services giving rise to the award will be performed on a form ("Deferral Notice") to be furnished by the Company. For example, a Deferral Notice for an award to be based on 1998 performance must be filed with the Company by the end of 1997. Once filed with the Company, the Deferral Notice may not be changed or revoked. DEFERRED AWARD ACCOUNTS Deferred Award Accounts will be established for each recipient with a timely Deferral Notice on file as soon as practicable following the Board of Directors' approval of an award. Amounts in Deferred Award accounts will be deemed to earn interest at a rate calculated on the last business day of each month (commencing with the first month following the deferral of an award) with reference to the Five-Year United States Treasury Bond rate, as reported in a nationally-recognized financial service. Deferred Awards, including deemed earnings thereon, will be payable as soon as practicable in the calendar year selected by an award recipient in the Deferral Notice. In the event that a participant with a Deferred Account dies, retires or terminates employment with the Company and its Affiliates prior to the time established for payment in the Deferral Notice, such participant's Deferred Account, plus earnings thereon, shall be paid to such participant or participant's designated beneficiary as soon as possible thereafter. For purposes of the Plan, the term "Affiliate" shall mean any parent of the Company or any entity in which the Company or any parent of the Company directly or indirectly beneficially owns more than 50% of the voting securities. The Committee may, in its discretion, terminate any Deferral and immediately pay out such award in cash. FORFEITURE Otherwise eligible participants who are discharged or resign from the Company and its Affiliates prior to the end of the Plan Year (December 31) will forfeit an annual award unless the termination is the result of disability (where disability is defined as being eligible to receive a benefit under a long-term disability plan of the Company or an Affiliate), death or retirement (where retirement is defined as a resignation at age 55 or older and with at least 10 years of service with the Company and its Affiliates or at age 65 or older). Deferred Accounts are not subject to forfeiture. 3 FUNDING STATUS Benefits under the Plan, including any Deferred Accounts, are payable solely from the general assets of the Company and shall remain unfunded and unsecured (under federal income tax laws and Title I of the Employee Retirement Income Security Act of 1974, as amended) during the entire period of the Plan's existence. The participant, the participant's spouse or beneficiary are merely general creditors of the Company and the obligations of the Company hereunder are purely contractual and shall not be funded or secured in any way. FUNDING STATUS Benefits under the Plan, including any Deferred Accounts, are payable solely from the general assets of the Company and shall remain unfunded and unsecured (under federal income tax laws and Title I of the Employee Retirement Income Security Act of 1974, as amended) during the entire period of the Plan's existence. The participant, the participant's spouse or beneficiary are merely general creditors of the Company and the obligations of the Company hereunder are purely contractual and shall not be funded or secured in any way. Nothing herein, however, shall preclude the Company from segregating assets which are intended to be a source of payment of benefits under the Plan. NON-ALIENABILITY AND NON-TRANSFERABILITY The right of a participant and participant's spouse or beneficiary to payment of any benefit or deferred compensation hereunder shall not be alienated, assigned, transferred, pledged or encumbered and shall not be subject to execution, attachment or similar process. No participant may borrow against the deferred account established for his or her benefit hereunder. No account shall be subject in any manner to alienation, sale, transfer, assignment, pledge, encumbrance, charge, garnishment, execution or levy of any kind, whether voluntary or involuntary, including but not limited to any liability which is for alimony or other payments for the support of a spouse or former spouse, or for any other relative of any employee. Any attempted assignment, pledge, levy or similar process shall be null and void and without effect. BENEFICIARY DESIGNATION Each eligible participant may name any beneficiary to whom awards under the Plan are to be paid in case of the eligible participant's death. Each designation will revoke all prior designations by the eligible participant and shall be on a form prescribed by the Plan Administrator and will be effective only when filed by the eligible participant with the Treasurer. In the absence of any such designation, awards due shall be paid to the participant's (1) life insurance beneficiary designated by the participant with respect to life insurance maintained by the Company for the benefit of the participant, or, in the absence of a designated life insurance beneficiary, (2) to the participant's estate. GOVERNING LAW The Plan shall be governed by the laws of the State of Michigan and, to the extent that may be applicable, the Federal laws of the United States. CHANGE IN CONTROL A change in control ("Change in Control") for purposes of the Plan shall have occurred if at any time on or after October 1, 1997 any of the following events shall occur: (1) DTE is merged, consolidated or reorganized into or with another corporation or other legal person, and as a result of such merger, consolidation or reorganization less than 55% of the combined voting power of the thenoutstanding securities of such corporation or person immediately after such transaction is held in the aggregate by the holders of the then-outstanding securities entitled to vote generally in the election of directors (the "Voting Stock") of DTE immediately prior to such transaction; 4 (2) DTE sells or otherwise transfers all or substantially all of its assets to another corporation or other legal person, and as a result of such sale or transfer, less 55% of the combined voting power of the then-outstanding Voting Stock of such corporation or person immediately after such sale or transfer is held in the aggregate (directly or through ownership of Voting Stock of DTE or a Subsidiary (as hereinafter defined)) by the holders of Voting Stock of DTE immediately prior to such sale or transfer; (3) There is a report filed on Schedule 13D or Schedule 14D-1 (or any successor schedule, form or report), each as promulgated pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), (2) DTE sells or otherwise transfers all or substantially all of its assets to another corporation or other legal person, and as a result of such sale or transfer, less 55% of the combined voting power of the then-outstanding Voting Stock of such corporation or person immediately after such sale or transfer is held in the aggregate (directly or through ownership of Voting Stock of DTE or a Subsidiary (as hereinafter defined)) by the holders of Voting Stock of DTE immediately prior to such sale or transfer; (3) There is a report filed on Schedule 13D or Schedule 14D-1 (or any successor schedule, form or report), each as promulgated pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), disclosing that any person (as the term "person" is used in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) has become the beneficial owner (as the term "beneficial owner" is defined under Rule 13d-3 or any successor rule or regulation promulgated under the Exchange Act) of securities representing 20% or more of the combined voting power of the then-outstanding Voting Stock of DTE; (4) If, during any period of two consecutive years, individuals who at the beginning of any such period constitute the directors of DTE cease for any reason to constitute at least a majority thereof; provided, however, that for purposes of this paragraph (4) each director who is first elected, or first nominated for election, by DTE's stockholders, by a vote of at least two-thirds of the directors of DTE (or a committee thereof) then still in office who were directors of DTE at the beginning of any such period will be deemed to have been a director of DTE at the beginning of such period; or (5) The approval of the shareholders of DTE of a complete liquidation or dissolution of DTE. Notwithstanding the foregoing provisions of paragraph (3) above, unless otherwise determined in a specific case by majority vote of the Board of Directors of DTE, a "Change in Control" shall not be deemed to have occurred for purposes of paragraph (3) solely because (i) DTE, (ii) an entity in which DTE directly or indirectly beneficially owns 50% or more of the outstanding Voting Stock (a "Subsidiary"), or (iii) any DTE-sponsored employee stock ownership plan or any other employee benefit plan of DTE or any Subsidiary either files or becomes obligated to file a report or a proxy statement under or in response to Schedule 13D or Schedule 14D-1 (or any successor schedule, form or report or item therein) under the Exchange Act disclosing beneficial ownership by it of shares of Voting Stock, whether in excess of 20% or otherwise. In the event a Change in Control occurs during a Plan year, then, notwithstanding anything to the contrary in the foregoing provisions of the Plan, including but not limited to the Section entitled "Administration", no payments of Awards shall be made under the foregoing provisions of the Plan for such Plan year, but instead, 5 (a) each Vice President and above at Detroit Edison during the Plan year employed by the Company or an Affiliate immediately prior to the date on which the Change in Control occurs, (b) and each Vice President and above at Detroit Edison who had terminated employment with the Company and its Affiliates during the Plan year by reason of retirement or disability (as such terms are defined above under "Forfeiture") or death prior to the occurrence of the Change in Control but after having held and actively performed in one or more such positions for a total of at least seven months during the Plan year, shall have a right (or, in the case of the person's death, his or her beneficiary shall have the right) to an immediate cash payment of an amount determined by multiplying (i) the individual's actual base salary (including applicable amounts deferred under Company-sponsored benefit plans) earned during the Plan year while a Vice President and above at Detroit Edison prior to the occurrence of the Change in Control or earlier termination by retirement, disability or death, by (ii) the individual's applicable target percent of salary by position for the Plan year based on the assumption that established performance targets were met. Such payments shall be made within 30 days after the date on which the Change in Control occurs without the necessity of approval of the Board of Directors. 6 EXHIBIT 10-14 (a) each Vice President and above at Detroit Edison during the Plan year employed by the Company or an Affiliate immediately prior to the date on which the Change in Control occurs, (b) and each Vice President and above at Detroit Edison who had terminated employment with the Company and its Affiliates during the Plan year by reason of retirement or disability (as such terms are defined above under "Forfeiture") or death prior to the occurrence of the Change in Control but after having held and actively performed in one or more such positions for a total of at least seven months during the Plan year, shall have a right (or, in the case of the person's death, his or her beneficiary shall have the right) to an immediate cash payment of an amount determined by multiplying (i) the individual's actual base salary (including applicable amounts deferred under Company-sponsored benefit plans) earned during the Plan year while a Vice President and above at Detroit Edison prior to the occurrence of the Change in Control or earlier termination by retirement, disability or death, by (ii) the individual's applicable target percent of salary by position for the Plan year based on the assumption that established performance targets were met. Such payments shall be made within 30 days after the date on which the Change in Control occurs without the necessity of approval of the Board of Directors. 6 EXHIBIT 10-14 FIFTH RESTATEMENT OF THE DETROIT EDISON COMPANY MANAGEMENT SUPPLEMENTAL BENEFIT PLAN The Detroit Edison Company Management Supplemental Benefit Plan (the "Plan"), established by The Detroit Edison Company (the "Company") effective July 24, 1989, as amended and restated effective January 22, 1990, June 26, 1995, January 1, 1996 and October 28, 1996, is hereby amended and restated as of October 27, 1997, by this Fifth Restatement. PURPOSE The Plan is designed to supplement pension benefits for eligible management employees. The Plan has the objective of making the Company's retirement program more competitive within the electric utility industry and general industry, which will facilitate the attraction and retention of management employees. DEFINITION AVERAGE FINAL COMPENSATION. Equals one-fifth of pay during the 260 weeks of Company service that results in the highest average, calculated without regard to any limitation imposed by Section 401(a)(17) of the Internal Revenue Code. In additional to normal pay, lump sum payments in lieu of April base pay increases and Shareholder Value Improvement Plan awards with no restriction on the year paid will be included when calculating the 260 weeks of benefit service which result in the highest average. AWARDED SERVICE. Years of service that may be imputed to an otherwise eligible Plan participant by the Organization and Compensation Committee ("Committee") of the Board of Directors, having taken into account the value to the Company of such participant's prior experience. COMPANY. The Detroit Edison Company and any Controlled Group Member which has adopted the Plan with the approval of the Chairman of the Board of Directors and the Chairman of the board of directors of the Controlled Group Member. As a condition to participating in the Plan, such Controlled Group Member shall authorize the Chairman of the Board of Directors to act for it in all matters arising under the Plan and shall agree to comply with such other terms and conditions as may be imposed by the Chairman of the Board of Directors. Where the context requires in respect of the liability for the payment of any benefit to an eligible participant or beneficiary thereof, the term "Company" shall mean The Detroit Edison Company or such other Controlled Group Member employing or who employed such employee. Unless otherwise defined herein, all defined terms shall have the same meaning as provided under the Retirement Plan. All corporate officers and other administrative personnel referred to herein refer to officers and administrative personnel of The Detroit Edison EXHIBIT 10-14 FIFTH RESTATEMENT OF THE DETROIT EDISON COMPANY MANAGEMENT SUPPLEMENTAL BENEFIT PLAN The Detroit Edison Company Management Supplemental Benefit Plan (the "Plan"), established by The Detroit Edison Company (the "Company") effective July 24, 1989, as amended and restated effective January 22, 1990, June 26, 1995, January 1, 1996 and October 28, 1996, is hereby amended and restated as of October 27, 1997, by this Fifth Restatement. PURPOSE The Plan is designed to supplement pension benefits for eligible management employees. The Plan has the objective of making the Company's retirement program more competitive within the electric utility industry and general industry, which will facilitate the attraction and retention of management employees. DEFINITION AVERAGE FINAL COMPENSATION. Equals one-fifth of pay during the 260 weeks of Company service that results in the highest average, calculated without regard to any limitation imposed by Section 401(a)(17) of the Internal Revenue Code. In additional to normal pay, lump sum payments in lieu of April base pay increases and Shareholder Value Improvement Plan awards with no restriction on the year paid will be included when calculating the 260 weeks of benefit service which result in the highest average. AWARDED SERVICE. Years of service that may be imputed to an otherwise eligible Plan participant by the Organization and Compensation Committee ("Committee") of the Board of Directors, having taken into account the value to the Company of such participant's prior experience. COMPANY. The Detroit Edison Company and any Controlled Group Member which has adopted the Plan with the approval of the Chairman of the Board of Directors and the Chairman of the board of directors of the Controlled Group Member. As a condition to participating in the Plan, such Controlled Group Member shall authorize the Chairman of the Board of Directors to act for it in all matters arising under the Plan and shall agree to comply with such other terms and conditions as may be imposed by the Chairman of the Board of Directors. Where the context requires in respect of the liability for the payment of any benefit to an eligible participant or beneficiary thereof, the term "Company" shall mean The Detroit Edison Company or such other Controlled Group Member employing or who employed such employee. Unless otherwise defined herein, all defined terms shall have the same meaning as provided under the Retirement Plan. All corporate officers and other administrative personnel referred to herein refer to officers and administrative personnel of The Detroit Edison Company. 1 COMPANY SERVICE. All years of service with the Company calculated to the nearest month. EXECUTIVE POST-EMPLOYMENT INCOME ARRANGEMENT. Individual arrangements that were entered into with certain executives upon initial employment with the Company, specifically excluding, however, any Change-in-Control Severance Arrangement entered into with DTE Energy Company and any offer of employment letter agreement as they may be amended from time to time. The arrangements may provide for additional benefits upon retirement. KEY EMPLOYE DEFERRED COMPENSATION PLAN. The Key Employe Deferred Compensation Plan initiated in 1964 which provides a supplemental pension benefit to certain management employees. The Key Employe Deferred Compensation Plan is sponsored by Detroit Edison for eligible employees. CERTAIN MANAGEMENT OR HIGHLY-COMPENSATED EMPLOYEES. An employee of a Company, other than The Detroit Edison Company, who is specifically designated by written order of the Committee as a COMPANY SERVICE. All years of service with the Company calculated to the nearest month. EXECUTIVE POST-EMPLOYMENT INCOME ARRANGEMENT. Individual arrangements that were entered into with certain executives upon initial employment with the Company, specifically excluding, however, any Change-in-Control Severance Arrangement entered into with DTE Energy Company and any offer of employment letter agreement as they may be amended from time to time. The arrangements may provide for additional benefits upon retirement. KEY EMPLOYE DEFERRED COMPENSATION PLAN. The Key Employe Deferred Compensation Plan initiated in 1964 which provides a supplemental pension benefit to certain management employees. The Key Employe Deferred Compensation Plan is sponsored by Detroit Edison for eligible employees. CERTAIN MANAGEMENT OR HIGHLY-COMPENSATED EMPLOYEES. An employee of a Company, other than The Detroit Edison Company, who is specifically designated by written order of the Committee as a member of management eligible to participate in the Plan, and who is a member of a select group of management or highly-compensated employees of the Company within the meaning of ERISA Section 201(2). An employee's designation as a Certain Management or Highly Compensated Employee shall terminate, however, on the date the Committee by written order terminates such employee's designation for participation in the Plan. NORMAL PAY. The employee's salary from the Company for a standard forty-hour work week calculated without regard to any limitation imposed by Section 401(a)(17) of the Internal Revenue Code including amounts deferred by the employee under the Company's qualified and non-qualified savings plans. It does not include any bonuses, special pay, or premium for overtime work. RETIREMENT PLAN. The Employes' Retirement Plan of The Detroit Edison Company ("Detroit Edison"). The Retirement Plan is a defined benefit pension plan sponsored by Detroit Edison for eligible employees. RETIREMENT ALLOWANCE FACTOR. The multiplier used in the basic formula of the Retirement Plan. ELIGIBILITY Eligibility to participate in this Plan is determined no later than the latest to occur of: (1) (2) 90 days from the date hereof; or 90 days subsequent to an otherwise eligible participant's 55th birthday; or 2 (3) In the case of an otherwise eligible participant who does not have at least 10 years of Company service at age 55, 90 days subsequent to the otherwise eligible participant's having 10 years of Company service. Participation in the Plan is limited to those management employees who (1) Are members of Management Council (pursuant to OR3, Management Groups, as may be amended from time to time) at the time of termination from the Company (or death while actively employed by the Company), or, with respect to management employees of a Company other than The Detroit Edison Company, are Certain Management or Highly Compensated Employees at the time of termination from the Company (or death while actively employed by the Company); and (2) Are not personally eligible to receive a benefit from the Key Employe Deferred Compensation (KEDC) Plan although a court of competent jurisdiction may have recognized spousal rights; and (3) In the case of an otherwise eligible participant who does not have at least 10 years of Company service at age 55, 90 days subsequent to the otherwise eligible participant's having 10 years of Company service. Participation in the Plan is limited to those management employees who (1) Are members of Management Council (pursuant to OR3, Management Groups, as may be amended from time to time) at the time of termination from the Company (or death while actively employed by the Company), or, with respect to management employees of a Company other than The Detroit Edison Company, are Certain Management or Highly Compensated Employees at the time of termination from the Company (or death while actively employed by the Company); and (2) Are not personally eligible to receive a benefit from the Key Employe Deferred Compensation (KEDC) Plan although a court of competent jurisdiction may have recognized spousal rights; and (3) Do not have an effective Executive Post-Employment Income Arrangement; and (4) At the time of termination from the Company (or death while actively employed), are at least 55 years of age and have at least 10 years of Company service. Employees who are eligible to receive a benefit from KEDC or who have entered into Post-Employment Income Arrangements with the Company may elect to participate in this Plan in accordance with the first paragraph of this section by filing an election to waive any rights to a benefit from KEDC and/or any rights under a PostEmployment Income Arrangement with the Vice President-Human Resources, who will provide an election form upon request, or, in the case of KEDC, will in certain circumstances be deemed to have made such elections as provided in KEDC. TARGET PERCENTAGE OF AVERAGE FINAL COMPENSATION Payments from the Plan are based upon the calculated target percentage of average final compensation. The target percentage of average final compensation is determined by years of Company service and awarded service, if any, and by the management group in which the participant is a member at the time of termination from the Company (or death while actively employed by the Company) as specified in Exhibit A. Participants awarded service under the Plan must certify any retirement income expected or being received from a previous employer. Payments from the Plan to participants with awarded service will be reduced by the noncontributory portion of any retirement income expected or being received from a previous employer. 3 Payments from the Plan will be reduced by any KEDC spousal payments required by a court of competent jurisdiction. Payments from the Plan may also be affected by the employee's age at termination (see Early Retirement) and the payment option selected by the employee (see Payment Options). Payments from the Plan are not payable until the participant terminates employment with the Company and all Controlled Group Members (by death or otherwise), and references in the following provisions of the Plan to "terminating employment" or "employment termination" or similar provisions shall mean termination of employment with the Company and all Controlled Group Members. EARLY RETIREMENT The Plan provides for an unreduced target percentage for those terminating employment at age 60 or older. A reduced or adjusted target percentage is provided for those terminating employment (including death) who are at least age 55 but prior to age 60. The early retirement adjustment schedule is as follows: AGE AT TERMINATION 55 EARLY RETIREMENT ADJUSTMENT PERCENTAGE 60% Payments from the Plan will be reduced by any KEDC spousal payments required by a court of competent jurisdiction. Payments from the Plan may also be affected by the employee's age at termination (see Early Retirement) and the payment option selected by the employee (see Payment Options). Payments from the Plan are not payable until the participant terminates employment with the Company and all Controlled Group Members (by death or otherwise), and references in the following provisions of the Plan to "terminating employment" or "employment termination" or similar provisions shall mean termination of employment with the Company and all Controlled Group Members. EARLY RETIREMENT The Plan provides for an unreduced target percentage for those terminating employment at age 60 or older. A reduced or adjusted target percentage is provided for those terminating employment (including death) who are at least age 55 but prior to age 60. The early retirement adjustment schedule is as follows: AGE AT TERMINATION 55 56 57 58 59 60 or older EARLY RETIREMENT ADJUSTMENT PERCENTAGE 60% 68% 76% 84% 92% 100% Age at termination is calculated to the nearest whole month and the early retirement adjustment percentage is determined accordingly. PAYMENT OPTIONS At the time of employment termination, an eligible employee must elect one of the following payment options: (a) Guaranteed Term Plus Life, (b) Actuarial-Adjusted Life with a 100% Joint and Survivor Benefit and (c) Actuarial-Adjusted Life with a 50% Joint and Survivor Benefit. In the event that an employee dies during active employment, and at the time of death was eligible for a benefit as provided herein, the payment option is deemed to be Guaranteed Term Plus Life. GUARANTEED TERM PLUS LIFE If the employee elects the Guaranteed Term Plus Life payment option, the employee, at the time of employment termination, must also elect a survivor benefit of either monthly payments or an adjusted lump sum payment. In the event that such an election is not made by the employee, 4 or in the event that the employee dies during active employment and at the time of death was eligible for a Plan benefit as provided herein, the survivor benefit is assumed to be the adjusted lump sum payment. The Guaranteed Term Plus Life payment option provides for a minimum of 15 years of payments to the employee or, if the employee lives beyond the 15-year period, the payments continue to be made to the employee for the life of the employee. If the employee elects the monthly payment survivor benefit and dies prior to the end of the 15-year period, payments will continue to be made to the employee's beneficiary or estate for the balance of the 15-year period. At the end of this 15-year period, all payments cease and liability of the Company under the Plan is terminated. If the employee elects the lump sum payment survivor benefit and dies prior to the end of the 15-year period, an adjusted lump sum payment is made to the employee's designated beneficiary or estate. The adjusted lump sum payment is determined by a standard annuity calculation where the adjusted lump sum is the present worth of the or in the event that the employee dies during active employment and at the time of death was eligible for a Plan benefit as provided herein, the survivor benefit is assumed to be the adjusted lump sum payment. The Guaranteed Term Plus Life payment option provides for a minimum of 15 years of payments to the employee or, if the employee lives beyond the 15-year period, the payments continue to be made to the employee for the life of the employee. If the employee elects the monthly payment survivor benefit and dies prior to the end of the 15-year period, payments will continue to be made to the employee's beneficiary or estate for the balance of the 15-year period. At the end of this 15-year period, all payments cease and liability of the Company under the Plan is terminated. If the employee elects the lump sum payment survivor benefit and dies prior to the end of the 15-year period, an adjusted lump sum payment is made to the employee's designated beneficiary or estate. The adjusted lump sum payment is determined by a standard annuity calculation where the adjusted lump sum is the present worth of the remaining monthly benefits in the 15-year period. The methodology and other relevant factors for determining the amount of the adjusted lump sum payment are provided in Exhibit B. Upon payment of the lump sum payment, all payments cease and liability of the Company under the Plan is terminated. ACTUARIAL-ADJUSTED LIFE WITH A 100% JOINT AND SURVIVOR BENEFIT This option provides for the actuarial equivalent to the benefit payment under the Guaranteed Term Plus Life option. Upon the death of the employee and the designated beneficiary, all payments cease and the liability of the Company under the Plan is terminated. The actuarial equivalent benefit is provided for the life of the employee and upon the death of the employee, 100% of the benefit is provided to the employee's designated beneficiary for the duration of the beneficiary's life. If the employee's designated beneficiary should die prior to the employee, payments continue from the life of the employee and upon the death of the employee all payments cease and liability of the Company under the Plan is terminated. If the employee and designated beneficiary are the same age, the actuarial equivalent benefit equals 97.94% of the Guaranteed Term Plus Life benefit. If the beneficiary is younger than the employee, this percentage is reduced by 1.2% for each 12 full months of difference in age. If the beneficiary is older than the employee, this percentage is increased 1.2% for each 12 full months in difference in age up to a maximum of 100%. ACTUARIAL-ADJUSTED LIFE WITH A 50% JOINT AND SURVIVOR BENEFIT This option provides for the actuarial equivalent to the benefit payable under the Guaranteed Term Plus Life option. Upon the death of the employee and the designated beneficiary, all payments cease and the liability of the Company under the Plan is terminated. The actuarial equivalent benefit is provided for the life of the employee and upon the death of the 5 employee, 50% of the benefit is provided to the employee's designated beneficiary for the duration of the beneficiary's life. If the employee's designated beneficiary should die prior to the employee, payments continue for the life of the employee and upon the death of the employee all payments cease and liability of the Company under the Plan is terminated. If the employee and designated beneficiary are the same age, the actuarial equivalent benefit equals 107.72% of the Guaranteed Term Plus Life benefit. If the beneficiary is younger than the employee, this percentage is reduced by 1% for each 12 full months of difference in age. If the beneficiary is older than the employee, there is no adjustment to the percentage. If the employee does not designate a beneficiary, the actuarial equivalent benefit equals 107.72% of the Guaranteed Term Plus Life benefit, and upon the death of the employee all payments cease and the liability of the Company under the Plan is terminated. PAYMENT CALCULATION Monthly payments from the Plan are determined as follows: STEP 1. DETERMINE GROSS TARGET AMOUNT employee, 50% of the benefit is provided to the employee's designated beneficiary for the duration of the beneficiary's life. If the employee's designated beneficiary should die prior to the employee, payments continue for the life of the employee and upon the death of the employee all payments cease and liability of the Company under the Plan is terminated. If the employee and designated beneficiary are the same age, the actuarial equivalent benefit equals 107.72% of the Guaranteed Term Plus Life benefit. If the beneficiary is younger than the employee, this percentage is reduced by 1% for each 12 full months of difference in age. If the beneficiary is older than the employee, there is no adjustment to the percentage. If the employee does not designate a beneficiary, the actuarial equivalent benefit equals 107.72% of the Guaranteed Term Plus Life benefit, and upon the death of the employee all payments cease and the liability of the Company under the Plan is terminated. PAYMENT CALCULATION Monthly payments from the Plan are determined as follows: STEP 1. DETERMINE GROSS TARGET AMOUNT The gross target amount results from multiplying the target percentage by Average Final Compensation as defined in this Plan (see Exhibit A to determine the target percentage). STEP 2. DETERMINE RETIREMENT PLAN BENEFIT The Retirement Plan benefit results from multiplying the retirement allowance factor by average final compensation as defined under the Retirement Plan, calculated for purposes hereof, without regard to any limitations imposed by Section 401(a)(17) or Section 415 of the Internal Revenue Code, by Company service and, if applicable, by the early retirement adjustment percentage required under the Retirement Plan. STEP 3. DETERMINE BASE ANNUAL TARGET BENEFIT AMOUNT The base annual target benefit amount results from subtracting the Retirement Plan benefit that would be payable at retirement (without regard to whether the employee elects to defer receipt of the benefit) from the gross target amount. STEP 4. DETERMINE ADJUSTED ANNUAL TARGET BENEFIT AMOUNT The adjusted annual target benefit amount results from multiplying the base annual target benefit amount by the early retirement adjustment percentage (see page 5 to determine the early retirement adjustment percentage). 6 STEP 5. DETERMINE MONTHLY TARGET BENEFIT AMOUNT UNDER THE GUARANTEED TERM PLUS LIFE PAYMENT OPTION The monthly target benefit amount under the Guaranteed Term Plus Life payment option is determined by dividing the adjusted annual target benefit amount by 12. STEP 6. ACTUARIAL-ADJUSTED PAYMENT OPTION If an actuarial-adjusted payment option is selected, the actuarial adjustment is applied to the monthly target benefit amount under the Guaranteed Term Plus Life payment option. STEP 7. ADJUSTMENT TO PAYMENT OPTION If an employee is not immediately eligible for a benefit under the Retirement Plan, the gross target amount will not be adjusted in Step 3 above. In those cases, the payment option determined in Step 6 above will be adjusted by the actuarial adjusted Retirement Plan benefit when it is paid to the employee. The payment determined in Step 6 above for employees with awarded service will be reduced by the non- STEP 5. DETERMINE MONTHLY TARGET BENEFIT AMOUNT UNDER THE GUARANTEED TERM PLUS LIFE PAYMENT OPTION The monthly target benefit amount under the Guaranteed Term Plus Life payment option is determined by dividing the adjusted annual target benefit amount by 12. STEP 6. ACTUARIAL-ADJUSTED PAYMENT OPTION If an actuarial-adjusted payment option is selected, the actuarial adjustment is applied to the monthly target benefit amount under the Guaranteed Term Plus Life payment option. STEP 7. ADJUSTMENT TO PAYMENT OPTION If an employee is not immediately eligible for a benefit under the Retirement Plan, the gross target amount will not be adjusted in Step 3 above. In those cases, the payment option determined in Step 6 above will be adjusted by the actuarial adjusted Retirement Plan benefit when it is paid to the employee. The payment determined in Step 6 above for employees with awarded service will be reduced by the noncontributory portion of any retirement income from a previous employer when it is paid to the employee. Exhibit C displays examples of the Plan payment calculation procedure. In the event an employee receives an assessment of income taxes from the Internal Revenue Service which treats any amount under this Plan as includible in such employee's gross income prior to payment of such amount to such employee, the Company shall pay an amount equal to such income taxes to such employee within 30 days after receipt of written notice from such employee about such assessment. The base annual target benefit amount (Step 3) shall be reduced by an amount equal to such income taxes and Steps 4, 5 and 6 shall be reduced accordingly. Each payment under this Plan shall be reduced by any federal, state or local taxes which The Detroit Edison Company determines should be withheld from such payment. SCHEDULE OF PAYMENTS Plan payments, if any, are made to the employee or to the designated beneficiary on a monthly basis. The schedule will follow the provisions for payment under the Retirement Plan. The accompanying examples show the effect of Retirement Plan benefits at different times. 7 BENEFICIARY DESIGNATION Each eligible participant may name any beneficiary to whom payments under the Plan are to be paid in case of the employee's death. Each designation will revoke all prior designations by the employee and shall be on a form prescribed by The Detroit Edison Company and will be effective only when filed by the employee with the Treasurer. In the absence of any such designation, payments due shall be paid to the employee's estate. TAXATION The Company makes no representation as to the tax consequences of individual payment options. Plan participants are urged to consult tax advisors of their choice for information and advice. NON-SECURED PROMISE; AMENDMENTS Eligible participants have the status of general unsecured creditors of the Company. This Plan constitutes a promise by the Company to make benefit payments in the future. The Company intends that this Plan be unfunded for tax purposes and for purposes of Title I of ERISA. The Company intends that this Plan be BENEFICIARY DESIGNATION Each eligible participant may name any beneficiary to whom payments under the Plan are to be paid in case of the employee's death. Each designation will revoke all prior designations by the employee and shall be on a form prescribed by The Detroit Edison Company and will be effective only when filed by the employee with the Treasurer. In the absence of any such designation, payments due shall be paid to the employee's estate. TAXATION The Company makes no representation as to the tax consequences of individual payment options. Plan participants are urged to consult tax advisors of their choice for information and advice. NON-SECURED PROMISE; AMENDMENTS Eligible participants have the status of general unsecured creditors of the Company. This Plan constitutes a promise by the Company to make benefit payments in the future. The Company intends that this Plan be unfunded for tax purposes and for purposes of Title I of ERISA. The Company intends that this Plan be maintained primarily for a select group of management or highly compensated employees. Payments as they become due under the Plan to or in respect of a Company's former employees shall be paid by such Company from its general assets; provided, however, that no provision of the Plan shall preclude a Company from segregating assets which are intended to be a source for payment of benefits under the Plan. The Detroit Edison Company reserves the right to amend, modify, or discontinue this Plan at any time; provided, however, that no such amendment, modification, or termination shall adversely affect the rights of participants or beneficiaries who are receiving or are immediately eligible to receive benefits from this Plan at the time of such amendment, modification, or termination, without such person's prior written consent. Any Controlled Group Member which has adopted the Plan may as to itself withdraw from the Plan at any time by action of the Chairman of its board of directors. In the event of dissolution, merger, consolidation or reorganization of a Company, the Plan shall terminate as to such Company unless the Plan is continued by a successor thereto (subject to the consent of the Chairman of the Board of Directors). Notwithstanding the foregoing provisions of this section, no amendment, modification, termination or withdrawal may be made after the occurrence of a Change in Control, as defined in Addendum I, that shall adversely affect the rights of any person who is receiving or upon termination would thereupon be entitled to receive benefits under the Plan, without such person's prior written consent. 8 ADMINISTRATION; ARBITRATION The Vice President-Human Resources is responsible for the administration of the Plan. The Vice PresidentHuman Resources has the authority to interpret the provisions of the Plan and prescribe any regulations relating to its administration. The decisions of the Vice President-Human Resources with respect thereto made prior to the occurrence of a Change in Control shall be conclusive. The Vice President-Human Resources shall review the Plan from time to time and as part of such review is hereby directed and authorized to amend such Plan to the extent necessary for ease of administration and/or to comply with applicable federal and state laws. The Treasurer of the Company shall be responsible for the administration of benefits under the Plan. Notwithstanding any provision in this Plan to the contrary, in the event of any dispute, claim or controversy (hereinafter referred to as a "Grievance") between an employee who is eligible to receive benefits under this Plan and the Company with respect to the payment of benefits to such employee under this Plan, the computation of benefits under this Plan, or any of the terms or conditions of this Plan, such Grievance shall be resolved by arbitration. Arbitration shall be the sole exclusive remedy to redress any Grievance. The arbitration decision shall be final and binding, and a judgment on the arbitration award may be entered in any court of competent ADMINISTRATION; ARBITRATION The Vice President-Human Resources is responsible for the administration of the Plan. The Vice PresidentHuman Resources has the authority to interpret the provisions of the Plan and prescribe any regulations relating to its administration. The decisions of the Vice President-Human Resources with respect thereto made prior to the occurrence of a Change in Control shall be conclusive. The Vice President-Human Resources shall review the Plan from time to time and as part of such review is hereby directed and authorized to amend such Plan to the extent necessary for ease of administration and/or to comply with applicable federal and state laws. The Treasurer of the Company shall be responsible for the administration of benefits under the Plan. Notwithstanding any provision in this Plan to the contrary, in the event of any dispute, claim or controversy (hereinafter referred to as a "Grievance") between an employee who is eligible to receive benefits under this Plan and the Company with respect to the payment of benefits to such employee under this Plan, the computation of benefits under this Plan, or any of the terms or conditions of this Plan, such Grievance shall be resolved by arbitration. Arbitration shall be the sole exclusive remedy to redress any Grievance. The arbitration decision shall be final and binding, and a judgment on the arbitration award may be entered in any court of competent jurisdiction and enforcement may be had according to its terms. The arbitration shall be conducted by American Arbitration Association in accordance with the Commercial Arbitration Rules of the American Arbitration Association and expenses of the arbitrator(s) and the American Arbitration Association shall be borne by the Company. Neither the Company nor such employee shall be entitled to attorneys' fees, expert witness fees, or other expenses expended in the course of such arbitration or the enforcement of any award rendered thereunder. The place of the arbitration shall be the offices of the American Arbitration Association in the Detroit Metropolitan area, Michigan. The arbitrator(s) shall not have the jurisdiction or authority to change any of the provisions of this Plan by alteration of, addition to, or subtraction from the terms thereof. The arbitrator(s)' sole authority shall be to apply any terms and conditions of this Plan. Since arbitration is the exclusive remedy with respect to any Grievance, no employee eligible to receive benefits under this Plan has the right to resort to any federal court, state court, local court, or administrative agency concerning breaches of any terms and provisions hereunder, and the decision of the arbitrator(s) shall be a complete defense to any suit, action, or proceeding instituted in any federal court, state court, local court, or administrative agency by such employee or the Company with respect to any Grievance which is arbitrable as herein set forth. The arbitration provisions shall, with respect to any Grievance, survive the termination of this Plan. NON-ALIENABILITY AND NON-TRANSFERABILITY The right of a participant, participant's spouse or beneficiary to payment of any benefit hereunder shall not be alienated, assigned, transferred, pledged or encumbered and shall not be subject to execution, attachment or similar process. No account shall be subject in any manner to alienation, sale, transfer, assignment, pledge, encumbrance, charge, garnishment, execution or 9 levy of any kind, whether voluntary or involuntary, including but not limited to any liability which is for alimony or other payments for the support of a spouse or former spouse, or for any other relative of any employee. Any attempted assignment, pledge, levy or similar process shall be null and void and without effect. CHANGE-IN-CONTROL BENEFIT FOR CERTAIN PERSONS Notwithstanding the foregoing provisions of the Plan, a participant or other employee of a Company who has entered into a Change-in-Control Severance Agreement with DTE Energy Company ("Change-in-Control Severance Agreement") shall receive a benefit as provided in Addendum I to the Plan upon termination of employment in certain circumstances following a Change in Control, as defined in Addendum I. In addition, any participant or beneficiary receiving a benefit under the Plan at the time of the occurrence of a Change in Control, as defined in Addendum I, shall receive payment as provided in Addendum I. If a benefit is payable to a participant or other employee or any beneficiary pursuant to Addendum I, neither the participant nor such employee, or any beneficiary thereof, shall be entitled to any payments or further payments, as the case may be, under the foregoing provisions of the Plan. levy of any kind, whether voluntary or involuntary, including but not limited to any liability which is for alimony or other payments for the support of a spouse or former spouse, or for any other relative of any employee. Any attempted assignment, pledge, levy or similar process shall be null and void and without effect. CHANGE-IN-CONTROL BENEFIT FOR CERTAIN PERSONS Notwithstanding the foregoing provisions of the Plan, a participant or other employee of a Company who has entered into a Change-in-Control Severance Agreement with DTE Energy Company ("Change-in-Control Severance Agreement") shall receive a benefit as provided in Addendum I to the Plan upon termination of employment in certain circumstances following a Change in Control, as defined in Addendum I. In addition, any participant or beneficiary receiving a benefit under the Plan at the time of the occurrence of a Change in Control, as defined in Addendum I, shall receive payment as provided in Addendum I. If a benefit is payable to a participant or other employee or any beneficiary pursuant to Addendum I, neither the participant nor such employee, or any beneficiary thereof, shall be entitled to any payments or further payments, as the case may be, under the foregoing provisions of the Plan. 10 EXHIBIT A TARGET PERCENTAGE TARGET PERCENTAGE OF AVERAGE FINAL COMPENSATION ------------ MANAGEMENT GROUP ----- SERVICE INDEX ----- 1. Chairman of the Board President Executive Vice President Participants who are Certain Management or Highly Compensated Employees designated as being in Group 1 by the Committee 60% 25 2. Senior Vice President Vice President Participants who are Certain Management or Highly Compensated Employees designated as being in Group 2 by the Committee Management Council members other than those included in Groups 1 and 2 above and Participants who are Certain Management or Highly Compensated Employees, other than those included in Groups 1 and 2 above, designated by the Committee as eligible to participate in the Plan 60% 30 3. 55% 35 If the sum of Company service and awarded service is greater than the corresponding service index, the target percentage is increased by 0.5% for each year of service above the index. If the sum of Company service and awarded service is less than the corresponding service index, the target percentage is reduced by 1% for each year of service below the index for employees in Groups 1 and 2 and by 1.5% for each year of service below the index for employees in Group 3. Company service is calculated to the nearest whole month. Awarded service is determined by the sole discretion of the Committee. The target percentage is adjusted accordingly if the service index results in fractional years. 11 EXHIBIT A TARGET PERCENTAGE TARGET PERCENTAGE OF AVERAGE FINAL COMPENSATION ------------ MANAGEMENT GROUP ----- SERVICE INDEX ----- 1. Chairman of the Board President Executive Vice President Participants who are Certain Management or Highly Compensated Employees designated as being in Group 1 by the Committee 60% 25 2. Senior Vice President Vice President Participants who are Certain Management or Highly Compensated Employees designated as being in Group 2 by the Committee Management Council members other than those included in Groups 1 and 2 above and Participants who are Certain Management or Highly Compensated Employees, other than those included in Groups 1 and 2 above, designated by the Committee as eligible to participate in the Plan 60% 30 3. 55% 35 If the sum of Company service and awarded service is greater than the corresponding service index, the target percentage is increased by 0.5% for each year of service above the index. If the sum of Company service and awarded service is less than the corresponding service index, the target percentage is reduced by 1% for each year of service below the index for employees in Groups 1 and 2 and by 1.5% for each year of service below the index for employees in Group 3. Company service is calculated to the nearest whole month. Awarded service is determined by the sole discretion of the Committee. The target percentage is adjusted accordingly if the service index results in fractional years. 11 EXHIBIT B Table for Determining the Adjusted Lump Sum Payment Under the Guaranteed Term Plus Life Payment Option (Per $1,000 of Adjusted Annual Target Benefit Amount) Remaining Years Of Guaranteed Term Payment Interest Rate 6% 7% 8% 9% 10% 11% --------------------------------------------------------------------------------------------------------15 $9,875 $9,271 $8,720 $8,216 $7,755 $7,332 14 9,456 8,909 8,406 7,945 7,520 7,128 13 9,012 8,520 8,067 7,648 7,260 6,901 12 8,540 8,103 7,699 7,323 6,973 6,648 11 8,038 7,656 7,300 6,967 6,656 6,365 EXHIBIT B Table for Determining the Adjusted Lump Sum Payment Under the Guaranteed Term Plus Life Payment Option (Per $1,000 of Adjusted Annual Target Benefit Amount) Remaining Years Of Guaranteed Term Payment Interest Rate 6% 7% 8% 9% 10% 11% --------------------------------------------------------------------------------------------------------15 $9,875 $9,271 $8,720 $8,216 $7,755 $7,332 14 9,456 8,909 8,406 7,945 7,520 7,128 13 9,012 8,520 8,067 7,648 7,260 6,901 12 8,540 8,103 7,699 7,323 6,973 6,648 11 8,038 7,656 7,300 6,967 6,656 6,365 10 7,506 7,177 6,868 6,578 6,306 6,050 9 6,941 6,663 6,401 6,153 5,919 5,698 8 6,341 6,112 5,895 5,688 5,492 5,305 7 5,704 5,521 5,347 5,179 5,020 4,867 6 5,028 4,888 4,753 4,623 4,498 4,378 5 4,310 4,208 4,110 4,014 3,922 3,833 4 3,548 3,480 3,413 3,349 3,286 3,224 3 2,739 2,699 2,659 2,621 2,583 2,545 2 1,880 1,861 1,843 1,824 1,806 1,788 1 968 963 958 953 948 943 0 0 0 0 0 0 0 NOTES: (1) Interest rate is determined by the current prime interest rate of the NBD Bank less 2%. (2) Apply linear interpolation for partial years remaining in guaranteed term period and adjustments for fractional interest rates. (3) Exhibit B shows the information to perform a standard annuity due calculation. It is the present worth of a stream of monthly payments of $1,000/12 per month made at the end of the month and continuing for the number of months remaining. 12 EXHIBIT B (CONTINUED) The formula is: -n Adjusted Lump Sum = Pmt x (1 -(1 + i) )/i Where i is the NBD Bank Prime rate less 2% divided by 12 and n is the number of months remaining. Pmt is $1,000/12 or $83.33. 13 EXHIBIT C EXHIBIT B (CONTINUED) The formula is: -n Adjusted Lump Sum = Pmt x (1 -(1 + i) )/i Where i is the NBD Bank Prime rate less 2% divided by 12 and n is the number of months remaining. Pmt is $1,000/12 or $83.33. 13 EXHIBIT C EXAMPLE 1 Assumptions: Date of Termination: Age at Termination: Position: MSBP Average Final Compensation: Retirement Plan Average Final Compensation: Company Service: Retirement Allowance Factor: Payment Option: January 31, 1998 65 Years, 0 Months Vice President $216,000 $180,000 25 Years, 0 Months .014 Guaranteed Term Plus Life (Survivor benefit - monthly payments) (Given the above, the target percentage is 55%) Step 1: 55% x $216,000 = $118,800 Step 2: .014 x $180,000 x 25 = $63,000 Step 3: $118,800 - $63,000 = $55,800 Step 4: $55,800 x 100% = $55,800 Step 5: $55,800/12 = $4,650 Monthly payments of $4,650 will be made for 15 years, or for the life of the employee if greater than 15 years. EXAMPLE 1A Assumptions listed for Example 1 apply with the exception of the following: Payment Option: Guaranteed Term Plus Life (Survivor benefit - lump sum payment) NBD Bank 9% Prime Interest Rate: Date of Employee's Death: January 31, 2003 EXHIBIT C EXAMPLE 1 Assumptions: Date of Termination: Age at Termination: Position: MSBP Average Final Compensation: Retirement Plan Average Final Compensation: Company Service: Retirement Allowance Factor: Payment Option: January 31, 1998 65 Years, 0 Months Vice President $216,000 $180,000 25 Years, 0 Months .014 Guaranteed Term Plus Life (Survivor benefit - monthly payments) (Given the above, the target percentage is 55%) Step 1: 55% x $216,000 = $118,800 Step 2: .014 x $180,000 x 25 = $63,000 Step 3: $118,800 - $63,000 = $55,800 Step 4: $55,800 x 100% = $55,800 Step 5: $55,800/12 = $4,650 Monthly payments of $4,650 will be made for 15 years, or for the life of the employee if greater than 15 years. EXAMPLE 1A Assumptions listed for Example 1 apply with the exception of the following: Payment Option: Guaranteed Term Plus Life (Survivor benefit - lump sum payment) NBD Bank 9% Prime Interest Rate: Date of Employee's Death: January 31, 2003 14 EXHIBIT C (CONTINUED) Monthly payments of $4,650 are made for the life of the employee (see Example 1). Upon the death of the employee (January 31, 2003), a lump sum payment of $400,476.60 is made to the beneficiary (see Exhibit B). EXAMPLE 2 Assumptions: Date of Termination: Age at Termination: January 31, 1998 58 Years, 6 Months EXHIBIT C (CONTINUED) Monthly payments of $4,650 are made for the life of the employee (see Example 1). Upon the death of the employee (January 31, 2003), a lump sum payment of $400,476.60 is made to the beneficiary (see Exhibit B). EXAMPLE 2 Assumptions: Date of Termination: Age at Termination: Position: MSBP Average Final Compensation: Retirement Plan Average Final Compensation: Company Service: Retirement Allowance Factor: Payment Option: January 31, 1998 58 Years, 6 Months Vice President $216,000 $180,000 25 Years, 6 Months .014 Guaranteed Term Plus Life (Survivor benefit-monthly payments) (Given the above, the target percentage is 55.5%) Step 1: .555 x $216,000 = $119,880 Step 2: .014 x $180,000 x 25.5 x .91 = $58,477 Step 3: $119,880 - $58,477 = $61,403 Step 4: $61,403 x .88 = $54,035 Step 5: $54,035/12 = $4,503 Monthly payments of $4,503 will be made for 15 years, or for the life of the employee if greater than 15 years. 15 EXHIBIT C (CONTINUED) EXAMPLE 2A Assumptions listed for Example 2 apply with the exception of the following: Payment Option: Actuarial-Adjusted Life with a 100% Joint and Survivor Benefit Beneficiary is two years younger than the employee Same as Example 2. The monthly benefit under the Guaranteed Term Plus Life option is $4,503 Employee/Beneficiary Age Difference: Step 1 - Step 5: Step 6: $4,503 x .9554 = $4,302 Monthly payments of $4,302 are made for the life of the employee. Upon the death of the employee, monthly payments of $4,302 are made for the life of the designated beneficiary. Upon the death of the designated beneficiary, all payments cease. EXAMPLE 2B EXHIBIT C (CONTINUED) EXAMPLE 2A Assumptions listed for Example 2 apply with the exception of the following: Payment Option: Actuarial-Adjusted Life with a 100% Joint and Survivor Benefit Beneficiary is two years younger than the employee Same as Example 2. The monthly benefit under the Guaranteed Term Plus Life option is $4,503 Employee/Beneficiary Age Difference: Step 1 - Step 5: Step 6: $4,503 x .9554 = $4,302 Monthly payments of $4,302 are made for the life of the employee. Upon the death of the employee, monthly payments of $4,302 are made for the life of the designated beneficiary. Upon the death of the designated beneficiary, all payments cease. EXAMPLE 2B Assumptions listed for Example 2A apply with the exception of the following: Payment Option: Actuarial-Adjusted Life with a 50% Joint and Survivor Benefit Same as Example 2. The monthly benefit under the Guaranteed Term Plus Life option is $4,503 Step 1 - Step 5: Step 6: $4,503 x 1.0572 = $4,760 Monthly payments of $4,760 are made for the life of the employee. Upon the death of the employee, monthly payments of $2,380($4,760 x 50%) are made for the life of the designated beneficiary. Upon the death of the designated beneficiary, all payments cease. 16 EXHIBIT C (CONTINUED) EXAMPLE 3 Assumptions: Date of Termination: Age at Termination: Position: MSBP Average Final Compensation: Retirement Plan Average Final Compensation: Company Service: Awarded Service: Retirement Allowance Factor: Employee/Beneficiary Age Difference: Payment Option: Monthly Pension from Previous Employer at age 65: January 31, 1998 60 Years, 0 Months Vice President $216,000 $180,000 14 Years, 0 Months 10 Years, 0 Months .014 Beneficiary is two years younger than the employee Actuarial-Adjusted Life with a 100% Joint and Survivor Benefit $2,000 EXHIBIT C (CONTINUED) EXAMPLE 3 Assumptions: Date of Termination: Age at Termination: Position: MSBP Average Final Compensation: Retirement Plan Average Final Compensation: Company Service: Awarded Service: Retirement Allowance Factor: Employee/Beneficiary Age Difference: Payment Option: Monthly Pension from Previous Employer at age 65: January 31, 1998 60 Years, 0 Months Vice President $216,000 $180,000 14 Years, 0 Months 10 Years, 0 Months .014 Beneficiary is two years younger than the employee Actuarial-Adjusted Life with a 100% Joint and Survivor Benefit $2,000 (Given the above, the target percentage is 54%) Step 1: 54% x $216,000 = $116,640 Step 2: $0 (Employee is ineligible for an immediate benefit under the Retirement Plan) Step 3: $116,640 - $0 = $116,640 Step 4: $116,640 x 100% = $116,640 Step 5: $116,640/12 = $9,720 Step 6: $9,720 x .9554 = $9,286 Monthly payments of $9,286 will be made until a benefit is payable (age 65 in Example 3) under the Retirement Plan and from the previous employer. At that time the benefit payable under the MSBP will be offset by an amount equivalent to the benefit paid under the Retirement Plan (Step 7-Option II assumed) and the benefit paid by the previous employer 17 EXHIBIT C (CONTINUED) Step 7: Monthly Retirement Plan Benefit: .014 x $180,000 x 14 x .88 = $31,046/12 = $2,587 Reductions to MSBP Benefit: Retirement Plan $9,286 - $2,587 = $6,699 Previous Employer $6,699 - $2,000 = $4,699 Monthly payments of $4,699 are made for the life of the employee. Upon the death of the employee, monthly payments of $4,699 are made for the life of the designated beneficiary. Upon the death of the designated beneficiary, all payments cease. 18 ADDENDUM I EXHIBIT C (CONTINUED) Step 7: Monthly Retirement Plan Benefit: .014 x $180,000 x 14 x .88 = $31,046/12 = $2,587 Reductions to MSBP Benefit: Retirement Plan $9,286 - $2,587 = $6,699 Previous Employer $6,699 - $2,000 = $4,699 Monthly payments of $4,699 are made for the life of the employee. Upon the death of the employee, monthly payments of $4,699 are made for the life of the designated beneficiary. Upon the death of the designated beneficiary, all payments cease. 18 ADDENDUM I CHANGE-IN-CONTROL BENEFITS A change in control ("Change in Control") for purposes of the Plan and this Addendum I shall have occurred if at any time on or after October 1, 1997 any of the following events shall occur: (1) DTE Energy Company ("DTE") is merged, consolidated or reorganized into or with another corporation or other legal person, and as a result of such merger, consolidation or reorganization less than 55% of the combined voting power of the then-outstanding securities of such corporation or person immediately after such transaction is held in the aggregate by the holders of the then-outstanding securities entitled to vote generally in the election of directors (the "Voting Stock") of DTE immediately prior to such transaction; (2) DTE sells or otherwise transfers all or substantially all of its assets to another corporation or other legal person, and as a result of such sale or transfer, less 55% of the combined voting power of the then-outstanding Voting Stock of such corporation or person immediately after such sale or transfer is held in the aggregate (directly or through ownership of Voting Stock of DTE or a Subsidiary (as hereinafter defined)) by the holders of Voting Stock of DTE immediately prior to such sale or transfer; (3) There is a report filed on Schedule 13D or Schedule 14D-1 (or any successor schedule, form or report), each as promulgated pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), disclosing that any person (as the term "person" is used in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) has become the beneficial owner (as the term "beneficial owner" is defined under Rule 13d-3 or any successor rule or regulation promulgated under the Exchange Act) of securities representing 20% or more of the combined voting power of the then-outstanding Voting Stock of DTE; (4) DTE files a report or proxy statement with the Securities and Exchange Commission pursuant to the Exchange Act disclosing in response to Form 8-K or Schedule 14A (or any successor schedule, form or report or item therein) that a change in control of DTE will occur in the future pursuant to a then-existing contract or transaction which when consummated would be a Change in Control determined without regard to this paragraph 4; 19 (5) If, during any period of two consecutive years, individuals who at the beginning of any such period constitute the directors of DTE cease for any reason to constitute at least a majority thereof; provided, however, that for purposes of this paragraph (5) each director who is first elected, or first nominated for election, by DTE's stockholders, by a vote of at least two-thirds of the directors of DTE (or a committee thereof) then still in office who were directors of DTE at the beginning of any such period will be deemed to have been a director of DTE at the beginning of such period; or ADDENDUM I CHANGE-IN-CONTROL BENEFITS A change in control ("Change in Control") for purposes of the Plan and this Addendum I shall have occurred if at any time on or after October 1, 1997 any of the following events shall occur: (1) DTE Energy Company ("DTE") is merged, consolidated or reorganized into or with another corporation or other legal person, and as a result of such merger, consolidation or reorganization less than 55% of the combined voting power of the then-outstanding securities of such corporation or person immediately after such transaction is held in the aggregate by the holders of the then-outstanding securities entitled to vote generally in the election of directors (the "Voting Stock") of DTE immediately prior to such transaction; (2) DTE sells or otherwise transfers all or substantially all of its assets to another corporation or other legal person, and as a result of such sale or transfer, less 55% of the combined voting power of the then-outstanding Voting Stock of such corporation or person immediately after such sale or transfer is held in the aggregate (directly or through ownership of Voting Stock of DTE or a Subsidiary (as hereinafter defined)) by the holders of Voting Stock of DTE immediately prior to such sale or transfer; (3) There is a report filed on Schedule 13D or Schedule 14D-1 (or any successor schedule, form or report), each as promulgated pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), disclosing that any person (as the term "person" is used in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) has become the beneficial owner (as the term "beneficial owner" is defined under Rule 13d-3 or any successor rule or regulation promulgated under the Exchange Act) of securities representing 20% or more of the combined voting power of the then-outstanding Voting Stock of DTE; (4) DTE files a report or proxy statement with the Securities and Exchange Commission pursuant to the Exchange Act disclosing in response to Form 8-K or Schedule 14A (or any successor schedule, form or report or item therein) that a change in control of DTE will occur in the future pursuant to a then-existing contract or transaction which when consummated would be a Change in Control determined without regard to this paragraph 4; 19 (5) If, during any period of two consecutive years, individuals who at the beginning of any such period constitute the directors of DTE cease for any reason to constitute at least a majority thereof; provided, however, that for purposes of this paragraph (5) each director who is first elected, or first nominated for election, by DTE's stockholders, by a vote of at least two-thirds of the directors of DTE (or a committee thereof) then still in office who were directors of DTE at the beginning of any such period will be deemed to have been a director of DTE at the beginning of such period; or (6) The approval of the shareholders of DTE of a complete liquidation or dissolution of DTE. Notwithstanding the foregoing provisions of paragraph (3) or (4) above, unless otherwise determined in a specific case by majority vote of the Board of Directors of DTE, a "Change in Control" shall not be deemed to have occurred for purposes of paragraph (3) or (4) solely because (i) DTE, (ii) an entity in which DTE directly or indirectly beneficially owns 50% or more of the outstanding Voting Stock (a "Subsidiary"), or (iii) any DTE-sponsored employee stock ownership plan or any other employee benefit plan of DTE or any Subsidiary either files or becomes obligated to file a report or a proxy statement under or in response to Schedule 13D, Schedule 14D-1, Form 8-K or Schedule 14A (or any successor schedule, form or report or item therein) under the Exchange Act disclosing beneficial ownership by it of shares of Voting Stock, whether in excess of 20% or otherwise or because DTE reports that a Change in Control of DTE has occurred or will occur in the future by reason of such beneficial ownership. In the event a Change in Control (as determined without regard to paragraph (4) above) occurs, any participant or former employee, or beneficiary thereof, who as of the date of the occurrence of the Change in Control is receiving benefits under the Plan shall be paid in cash in a lump sum an amount equal to the actuarial equivalent (5) If, during any period of two consecutive years, individuals who at the beginning of any such period constitute the directors of DTE cease for any reason to constitute at least a majority thereof; provided, however, that for purposes of this paragraph (5) each director who is first elected, or first nominated for election, by DTE's stockholders, by a vote of at least two-thirds of the directors of DTE (or a committee thereof) then still in office who were directors of DTE at the beginning of any such period will be deemed to have been a director of DTE at the beginning of such period; or (6) The approval of the shareholders of DTE of a complete liquidation or dissolution of DTE. Notwithstanding the foregoing provisions of paragraph (3) or (4) above, unless otherwise determined in a specific case by majority vote of the Board of Directors of DTE, a "Change in Control" shall not be deemed to have occurred for purposes of paragraph (3) or (4) solely because (i) DTE, (ii) an entity in which DTE directly or indirectly beneficially owns 50% or more of the outstanding Voting Stock (a "Subsidiary"), or (iii) any DTE-sponsored employee stock ownership plan or any other employee benefit plan of DTE or any Subsidiary either files or becomes obligated to file a report or a proxy statement under or in response to Schedule 13D, Schedule 14D-1, Form 8-K or Schedule 14A (or any successor schedule, form or report or item therein) under the Exchange Act disclosing beneficial ownership by it of shares of Voting Stock, whether in excess of 20% or otherwise or because DTE reports that a Change in Control of DTE has occurred or will occur in the future by reason of such beneficial ownership. In the event a Change in Control (as determined without regard to paragraph (4) above) occurs, any participant or former employee, or beneficiary thereof, who as of the date of the occurrence of the Change in Control is receiving benefits under the Plan shall be paid in cash in a lump sum an amount equal to the actuarial equivalent present value of the remaining benefits, determined as of the date of payment, that are payable to or in respect of such person under the Plan (including survivor benefits, if applicable). In the event a Change in Control occurs, any participant or employee of a Company who has entered into a Change-in-Control Severance Agreement and whose employment is terminated after the occurrence of the Change in Control in circumstances entitling the individual to severance compensation under Section 4 of the Change-in-Control Severance Agreement shall be entitled to a cash lump sum payment under the Plan if (i) the participant or employee is at least age 47 and 7 months (after the application of the additional age credit as provided in paragraph (2) below) and (ii) the participant or employee otherwise meets the requirements for participation in the Plan set forth under "Eligibility" (except that the participant or employee need not be at least age 55 and have at least 10 years of Company service and for purposes of clause (1) under the second paragraph under "Eligibility" the participant or employee 20 need only have been a member of Management Council or, if applicable, be a Certain Management or Highly Compensated Employee immediately prior to the occurrence of the Change in Control or at any time thereafter). The amount of such payment shall be equal to the actuarial equivalent present value of the benefit, if any, that would otherwise be payable to the participant or employee under the Plan under the Guaranteed Term Plus Life payment option determined as otherwise provided in the Plan but with the following modifications: (1) Awarded service and the management group in which the participant or employee is a member shall be determined immediately prior to the time of termination, or the time of the occurrence of the Change in Control, if greater. (2) The Plan benefit shall be determined by assuming the participant has two additional years each of age and Company service for purposes of the Plan, as provided in Section 4(a)(ii) of the Change-in-Control Severance Agreement. (3) If the participant or employee is not eligible for immediate payment of a benefit under the Retirement Plan, the Plan benefit to which the participant or employee is entitled shall be determined without regard to Step 2 under "Payment Calculation", but instead the lump sum payable under this Addendum I shall be reduced by the actuarial equivalent of the Retirement Plan benefit as provided in paragraph (6) below. need only have been a member of Management Council or, if applicable, be a Certain Management or Highly Compensated Employee immediately prior to the occurrence of the Change in Control or at any time thereafter). The amount of such payment shall be equal to the actuarial equivalent present value of the benefit, if any, that would otherwise be payable to the participant or employee under the Plan under the Guaranteed Term Plus Life payment option determined as otherwise provided in the Plan but with the following modifications: (1) Awarded service and the management group in which the participant or employee is a member shall be determined immediately prior to the time of termination, or the time of the occurrence of the Change in Control, if greater. (2) The Plan benefit shall be determined by assuming the participant has two additional years each of age and Company service for purposes of the Plan, as provided in Section 4(a)(ii) of the Change-in-Control Severance Agreement. (3) If the participant or employee is not eligible for immediate payment of a benefit under the Retirement Plan, the Plan benefit to which the participant or employee is entitled shall be determined without regard to Step 2 under "Payment Calculation", but instead the lump sum payable under this Addendum I shall be reduced by the actuarial equivalent of the Retirement Plan benefit as provided in paragraph (6) below. (4) If the participant or employee is under age 55 (after the application of paragraph (2) above), the applicable early retirement adjustment percentage shall be determined as follows: AGE AT TERMINATION 55 54 53 52 51 50 49 48 47.5 EARLY RETIREMENT ADJUSTMENT PERCENTAGE 60% 52% 44% 36% 28% 20% 12% 4% 0% (5) If the participant or employee has received awarded service under the Plan, the lump sum payable shall be reduced by the actuarial 21 equivalent of the non-contributory portion of the retirement income expected or being received from the participant's or employee's previous employer. (6) If a participant or employee is not eligible for immediate payment of a benefit under the Retirement Plan, the lump sum payable shall be reduced by the actuarial equivalent of the benefit to which the employee is entitled at age 65 under the Retirement Plan as determined without regard to any limitation imposed by Section 401(a)(17) or Section 415 of the Internal Revenue Code. Upon the foregoing payment, no further benefits shall be payable under the Plan to such participant or employee or beneficiary thereof. Payments under this Addendum I shall be made within 30 days after the date on which the Change in Control occurs or, if later, the date the participant or employee terminates employment. For purposes of this Addendum I, the interest/discount rate and mortality table used to determine actuarial equivalence shall be as follows: (1) Interest/discount Rate - an annual rate equal to the Fed's Fund Rate (as of the first business day of the calendar month in which the Change in Control or termination, if later, occurs) plus 1%, but in no event shall the interest/discount rate exceed 8% or be less than 5%. equivalent of the non-contributory portion of the retirement income expected or being received from the participant's or employee's previous employer. (6) If a participant or employee is not eligible for immediate payment of a benefit under the Retirement Plan, the lump sum payable shall be reduced by the actuarial equivalent of the benefit to which the employee is entitled at age 65 under the Retirement Plan as determined without regard to any limitation imposed by Section 401(a)(17) or Section 415 of the Internal Revenue Code. Upon the foregoing payment, no further benefits shall be payable under the Plan to such participant or employee or beneficiary thereof. Payments under this Addendum I shall be made within 30 days after the date on which the Change in Control occurs or, if later, the date the participant or employee terminates employment. For purposes of this Addendum I, the interest/discount rate and mortality table used to determine actuarial equivalence shall be as follows: (1) Interest/discount Rate - an annual rate equal to the Fed's Fund Rate (as of the first business day of the calendar month in which the Change in Control or termination, if later, occurs) plus 1%, but in no event shall the interest/discount rate exceed 8% or be less than 5%. (2) Mortality Table - the unisex version of the mortality table used for funding purposes of the most recent actuarial valuation for the Plan issued prior to the date of the Change in Control as defined in the DTE Change-inControl Severance Agreements. 22 EXHIBIT 10.15 SHAREHOLDER VALUE IMPROVEMENT PLAN-A AS AMENDED AND RESTATED EFFECTIVE OCTOBER 27, 1997 OVERVIEW The Shareholder Value Improvement Plan - A (Plan) is designed to encourage continued improvement in performance and operating results. The Plan's ultimate objective is to increase shareholder value. It provides a method for senior levels of management to share in the added value that they create by contributing to corporate performance improvement. The Plan provides for possible financial awards to eligible members of senior management if specified annual corporate and organizational unit goals are achieved and is intended to motivate senior levels of management toward taking actions that have long-term performance outcomes which improve shareholder value. For Plan years 1991, 1992 and 1993, a portion of approved awards was deferred for a specified period of time. Commencing with the 1996 Plan Year, recipients of Plan awards will be permitted, under specified conditions, to defer the payment of awards. The Plan measures calendar year performance. The current year's standards and requirements will be communicated annually. ADMINISTRATION The Organization and Compensation Committee (Committee) of the Board of Directors is Plan Administrator with responsibility for the administration of the Plan. The Committee has the authority to interpret the provisions of the Plan and prescribe any regulations relating to its administration. The decisions of the Committee with respect to the administration of the Plan made prior to the occurrence of a Change in Control, as defined herein, shall be conclusive. The Committee, on an annual basis, will review and if appropriate, recommend to the Board of Directors for approval, the specific criteria for eligibility, the type and timing of awards and the manner of payment of awards EXHIBIT 10.15 SHAREHOLDER VALUE IMPROVEMENT PLAN-A AS AMENDED AND RESTATED EFFECTIVE OCTOBER 27, 1997 OVERVIEW The Shareholder Value Improvement Plan - A (Plan) is designed to encourage continued improvement in performance and operating results. The Plan's ultimate objective is to increase shareholder value. It provides a method for senior levels of management to share in the added value that they create by contributing to corporate performance improvement. The Plan provides for possible financial awards to eligible members of senior management if specified annual corporate and organizational unit goals are achieved and is intended to motivate senior levels of management toward taking actions that have long-term performance outcomes which improve shareholder value. For Plan years 1991, 1992 and 1993, a portion of approved awards was deferred for a specified period of time. Commencing with the 1996 Plan Year, recipients of Plan awards will be permitted, under specified conditions, to defer the payment of awards. The Plan measures calendar year performance. The current year's standards and requirements will be communicated annually. ADMINISTRATION The Organization and Compensation Committee (Committee) of the Board of Directors is Plan Administrator with responsibility for the administration of the Plan. The Committee has the authority to interpret the provisions of the Plan and prescribe any regulations relating to its administration. The decisions of the Committee with respect to the administration of the Plan made prior to the occurrence of a Change in Control, as defined herein, shall be conclusive. The Committee, on an annual basis, will review and if appropriate, recommend to the Board of Directors for approval, the specific criteria for eligibility, the type and timing of awards and the manner of payment of awards (current and/or deferred), the performance measures and related weights to be used in computing award amounts for Plan Years 1991, 1992, 1993 and 1994 and the Performance Fund for Plan year 1995 and thereafter and the performance levels for each performance measure. The Board of Directors reserves the right to amend, suspend or terminate the Plan at any time (See "Awards"); provided, however, that on or after the occurrence of a Change in Control, as defined herein, no amendment, suspension or termination of the Plan may be made that adversely affects the rights of any person without his or her prior written consent. Current awards calculated under the terms of the Plan are not payable until such time as the Board's approval has been granted; provided, however, that notwithstanding the foregoing or any other provision of the Plan, after a Change in Control, as defined herein, such approval is not required with respect to awards thereafter payable in respect of any Plan year ending prior to the occurrence of the Change in Control. The Board of Directors reserves the right to reduce or cancel any awards that might otherwise be made if in its sole discretion it determines that the performance achieved is not indicative of an improvement in shareholder value. If such a determination is made, the Plan may be canceled or substantially modified with the result of terminating or decreasing any awards that might otherwise be made hereunder. Notwithstanding the foregoing or any other provision of the Plan, no award in respect of a Plan year ending prior to the occurrence of a Change in Control, as defined herein, may be reduced or cancelled, nor may the Plan be so cancelled or substantially modified, following the occurrence of a Change in Control. The Treasurer will be responsible for making award payments, for establishing and maintaining the equity and deferred accounts for award recipients, and for maintaining all necessary records regarding the valuation and payment of awards. herein, may be reduced or cancelled, nor may the Plan be so cancelled or substantially modified, following the occurrence of a Change in Control. The Treasurer will be responsible for making award payments, for establishing and maintaining the equity and deferred accounts for award recipients, and for maintaining all necessary records regarding the valuation and payment of awards. The Vice President-Human Resources will assist the Committee in the development, administration and communication of the Plan. ELIGIBILITY Only those individuals that hold and actively perform (where "hold and actively perform" excludes all temporary assignments, all step-up assignments and lengthy periods of absences) in positions of Vice President or above who receive at least a "satisfactory" or "solid" performance appraisal for the applicable calendar year will be eligible to participate in the Plan. The Board of Directors may at any time specify additional positions that may be eligible to participate in the Plan. Any person who is elected to an eligible position in The Detroit Edison Company will become eligible to participate in the Plan provided, however, that any such participant must hold, and actively perform in, one or more eligible positions for a total of at least seven months during a Plan year to receive any award under the Plan. Employees are not eligible to participate in the Plan if they are eligible to participate in any other Company incentive program (other than the Long Term Incentive Plan submitted to Common Shareholders for approval in April 1995 and the Executive Incentive Plan). Exceptions to the eligibility criteria may be authorized by the Board of Directors. Participation in the Plan does not guarantee continued employment with the Company. AWARD OPPORTUNITY For Plan years 1991, 1992, 1993 and 1994, awards were calculated as a percent of pay based on the achievement of specific performance measures. Each performance measure was assigned performance levels and weights. The amount of an award was dependent upon the achieved level of performance, the associated weight and the applicable award opportunity percentage. For Plan years 1991, 1992, 1993 and 1994, the award opportunity percentage that applied to participants was determined by the eligible position that each applicable participant held and actively performed for at least seven months during the calendar year (Plan year). If during a calendar year participants held and actively performed in different eligible positions for a total of at least seven months, their award was calculated at the award level for the lowest eligible position they held provided that they did not hold and actively perform in a single eligible position for at least seven months, in which event the eligible position held for seven months was used for purposes of the Plan. Effective with the 1995 Plan year, awards, if any, will be payable from a fund ("Performance Fund") established by multiplying the base salary (including applicable amounts deferred under Company-sponsored benefit plans) of otherwise eligible members of senior management by a percent based upon the achievement of specific performance measures. (For purposes of the Performance Fund, base salary is defined as being the sum of the base salary of all otherwise eligible members of senior management who performed in one or more senior management positions for a total of at least seven months during the applicable calendar year which is also a Plan year.) 2 PERFORMANCE MEASURES, LEVELS AND WEIGHTS PERFORMANCE MEASURES, LEVELS AND WEIGHTS The measures of performance and weight applicable to each Plan year will be communicated annually to all eligible employees. AWARDS Award amounts for 1991, 1992, 1993 and 1994 were calculated with reference to the base salary paid during the applicable calendar year including certain amounts deferred under Company-sponsored benefit plans. Effective with the 1995 Plan year, award amounts will be payable from the Performance Fund and will be granted, in the sole discretion of the Board of Directors, to otherwise eligible members of senior management, in such amounts, if any, as are determined to be appropriate by the Board of Directors. For Plan years 1991, 1992, 1993 and 1994, if an otherwise eligible participant met the eligibility criteria but terminated employment and the termination was due to disability (where disability is defined as being eligible to receive a benefit under the Company's Long Term Disability Plan) or retirement (where retirement is defined as a resignation at age 55 or older and with at least 10 years of Company service or at age 65 or older) or died, such otherwise eligible participant remained eligible for a prorated award for the applicable Plan year. Awards under the Plan are not considered compensation for purposes of the Company's qualified and nonqualified savings plans, the Company's qualified and non-qualified retirement plans, insurance or any other Company-sponsored qualified or non-qualified employee benefit programs. See "Forfeiture" herein. AWARD CALCULATION For Plan years 1991, 1992, 1993 and 1994, award amounts were calculated by multiplying a participant's base salary (as defined previously in "Awards") by the award percentage approved by the Board of Directors. Effective with the 1995 Plan year, awards, if any, will be payable from the Performance Fund in such amounts as deemed appropriate by the Board of Directors. AWARD PAYMENT For Plan years 1991, 1992 and 1993, fifty percent (50%) of annual awards were paid as soon as practicable following approval by the Board of Directors. Effective with the 1994 Plan year, annual awards, if any, will be paid as soon as practicable following approval by the Board of Directors unless deferred as permitted herein. Effective with the 1996 Plan year, members of senior management will be permitted to defer the payment of 50% to 100% of an approved award that is payable prior to the occurrence of a Change in Control, as defined herein, for a period of from one to five years ("Deferred Awards"). A Deferred Award Account will be established for each award recipient with a timely Deferral Notice on file with the Company. Deferrals must be irrevocably submitted prior to the commencement of the Plan year during which the services giving rise to the award will be performed on a form ("Deferral Notice") to be furnished by the Company. For example, a Deferral Notice for an award to be based on 1996 performance must be filed with the Company by the end of 1995. Once filed with the Company, the Deferral Notice may not be changed or revoked. 3 For Plan years 1991, 1992 and 1993, fifty percent (50%) of the annual awards were converted to equity units and deferred for a three-year period. This deferred portion of the approved award was deemed to be invested, prior to January 1, 1996, in Company Common Stock, and, effective January 1, 1996, in the common stock of DTE Energy Company (the common stock of the Company and of DTE Energy Company, as applicable, are referred to herein as "Common Stock"), by converting the award into equity units equal in value to the average of the high and low sales prices of Detroit Edison Common Stock as listed in the Wall Street Journal for the New York Stock Exchange Composite Tape, on the last business day on which such stock was traded in the Plan year to which the award related. Equity units were credited to each participant's unfunded equity account as For Plan years 1991, 1992 and 1993, fifty percent (50%) of the annual awards were converted to equity units and deferred for a three-year period. This deferred portion of the approved award was deemed to be invested, prior to January 1, 1996, in Company Common Stock, and, effective January 1, 1996, in the common stock of DTE Energy Company (the common stock of the Company and of DTE Energy Company, as applicable, are referred to herein as "Common Stock"), by converting the award into equity units equal in value to the average of the high and low sales prices of Detroit Edison Common Stock as listed in the Wall Street Journal for the New York Stock Exchange Composite Tape, on the last business day on which such stock was traded in the Plan year to which the award related. Equity units were credited to each participant's unfunded equity account as described in the section entitled "Equity Units". See "Forfeiture" herein. EQUITY UNITS For Plan years 1991, 1992 and 1993, unfunded equity accounts were created for each participant and fifty percent (50%) of the approved award was converted into equity units. Subsequently, as dividends were and are paid on Common Stock, a dividend was and will be deemed to be paid on each equity unit in an amount equal to the dividend which is declared and paid on the Common Stock. Deemed dividends have been and will be converted to equity units equal in value to the average of the high and low sales prices of the Common Stock as listed in the Wall Street Journal for the New York Stock Exchange Composite Tape on the dividend payment date, or if such day was not or is not a business day, on the business day immediately preceding the dividend date. Equity units created as a result of deemed dividends have been and will be credited to each participant's unfunded equity account as of the dividend payment date, or if such day was or is not a business day, on the business day immediately preceding the dividend date. The value of equity units is subject to appreciation and depreciation depending upon the trading price of the Common Stock as listed in the Wall Street Journal for the New York Stock Exchange Composite tape. DEFERRED AWARD ACCOUNTS Effective for Plan Year 1996 and thereafter, Deferred Award Accounts will be established for each recipient with a timely Deferral Notice on file as soon as practicable following Board approval of an award. Amounts in Deferred Award Accounts will be deemed to earn interest at a rate calculated on the last business day of each month with reference to the Five-Year United States Treasury Bond rate, as reported in a nationally-recognized financial service. Deferred Awards, including deemed earnings thereon, will be payable as soon as practicable in the calendar year selected by an award recipient in the Deferral Notice. In the event that a participant with a Deferred Account dies, retires or terminates employment with the Company and its Affiliates prior to the time established for payment in the Deferral Notice, such participant's Deferred Account, plus earnings thereon, shall be paid to such participant or participant's designated beneficiary as soon as possible thereafter. For purposes of the Plan, the term "Affiliate" shall mean any parent of the Company or any entity in which the Company or any parent of the Company directly or indirectly beneficially owns more than 50% of the voting securities. 4 EQUITY ACCOUNT PAYMENTS The value of the equity units established for Plan Years 1991, 1992 and 1993 will be paid to the eligible participant in a lump sum cash payment after the end of the third year following the year to which the award relates provided the participant is actively employed by the Company or an Affiliate at the end of the third year (December 31) of the three-year award deferral period. (For example, the value of an equity account that is based on the 1992 Plan year is payable as soon as practicable during 1996.) In the event that the participant terminates employment prior to the end of the third year following the year to which the award relates, and the termination is due to disability (where disability is defined as being eligible to receive a benefit under a long-term disability plan of the Company or an Affiliate) or retirement (where retirement is defined as a resignation at age 55 or older and with at least 10 years of service with the Company and its Affiliates or at age 65 or older), the total EQUITY ACCOUNT PAYMENTS The value of the equity units established for Plan Years 1991, 1992 and 1993 will be paid to the eligible participant in a lump sum cash payment after the end of the third year following the year to which the award relates provided the participant is actively employed by the Company or an Affiliate at the end of the third year (December 31) of the three-year award deferral period. (For example, the value of an equity account that is based on the 1992 Plan year is payable as soon as practicable during 1996.) In the event that the participant terminates employment prior to the end of the third year following the year to which the award relates, and the termination is due to disability (where disability is defined as being eligible to receive a benefit under a long-term disability plan of the Company or an Affiliate) or retirement (where retirement is defined as a resignation at age 55 or older and with at least 10 years of service with the Company and its Affiliates or at age 65 or older), the total value of any or all unfunded equity accounts will be converted to cash and paid as soon as practicable in a lump sum cash payment to the participant. In the event that the participant dies, the total value of all unfunded equity account balances will be paid as soon as practicable in a lump sum cash payment. The value of the unfunded equity account will be determined by multiplying the number of equity units in the account by the average of the high and low sales prices of Common Stock, as listed in the Wall Street Journal for the New York Stock Exchange Composite Tape, on (1) the day the three-year period ends; (2) the day the employee terminates employment due to disability (last day of employment); (3) the day the employee dies (official date of death); or (4) the day the employee retires (last day of employment), as applicable. If the day the three-year period ends or the last day of employment or date of death is not a business day, the deferred award will be valued on the preceding business day. If the date of a participant's termination of employment due to disability or retirement as defined herein or death or the day after such three-year period ends falls within the record date and the associated dividend payment date for the Common Stock, then such dividend will be deemed to be paid on the equity units in the participant's unfunded account. The value of such deemed dividend will be paid in cash. FORFEITURE Eligible participants who are discharged or resign from the Company and its Affiliates (except for terminations due to disability or retirement as defined herein or death) prior to the end of the third year following the year to which an award required to be deferred by the Company relates will forfeit the value of the equity units. Unless the termination is the result of disability, death or by normal or early retirement as defined herein, a participant will forfeit an annual award, including any portion required to be deferred by the Company, if the participant is not actively employed by the Company or an Affiliate at the end of the Plan year (December 31). Deferred Accounts are not subject to forfeiture. FUNDING STATUS Benefits under the Plan including any equity accounts and Deferred Accounts are payable solely from the general assets of the Company and shall remain unfunded and unsecured (under federal income tax laws and Title I of the Employee Retirement Income Security Act of 1974, as amended) during the entire period of the Plan's existence. The participant, the participant's spouse or beneficiary are merely general creditors of the Company and the obligations of the Company hereunder are purely contractual and shall not be funded or secured in any way. If and to the extent the Company chooses 5 to actually invest in any Common Stock, assets acquired by the Company shall remain the sole property of the Company, subject to the claims of its general creditors, and shall not be deemed to form part of the participant's unfunded equity account. Nothing herein, however, shall preclude the Company from segregating assets which are intended to be a source of payment of benefits under the Plan. NON-ALIENABILITY AND NON-TRANSFERABILITY to actually invest in any Common Stock, assets acquired by the Company shall remain the sole property of the Company, subject to the claims of its general creditors, and shall not be deemed to form part of the participant's unfunded equity account. Nothing herein, however, shall preclude the Company from segregating assets which are intended to be a source of payment of benefits under the Plan. NON-ALIENABILITY AND NON-TRANSFERABILITY The right of a participant, participant's spouse or beneficiary to payment of any benefit or deferred compensation hereunder shall not be alienated, assigned, transferred, pledged or encumbered and shall not be subject to execution, attachment or similar process. No participant may borrow against the unfunded equity or deferred account established for his or her benefit hereunder. No account shall be subject in any manner to alienation, sale, transfer, assignment, pledge, encumbrance, charge, garnishment, execution or levy of any kind, whether voluntary or involuntary, including but not limited to any liability which is for alimony or other payments for the support of a spouse or former spouse, or for any other relative of any employee. Any attempted assignment, pledge, levy or similar process shall be null and void and without effect. BENEFICIARY DESIGNATION Each eligible participant may name any beneficiary to whom awards under the Plan are to be paid in case of the eligible participant's death before he/she receives an award hereunder. Each designation will revoke all prior designations by the eligible participant and shall be on a form prescribed by the Plan Administrator and will be effective only when filed by the eligible participant with the Treasurer. In the absence of any such designation, awards due shall be paid to the participant's (1) life insurance beneficiary designated by the participant with respect to life insurance maintained by the Company for the benefit of the participant, or, in the absence of a designated life insurance beneficiary, (2) to the participant's estate. CHANGE IN CONTROL A change in control ("Change in Control") for purposes of the Plan shall have occurred if at any time on or after October 1, 1997 any of the following events shall occur: (1) DTE Energy Company ("DTE") is merged, consolidated or reorganized into or with another corporation or other legal person, and as a result of such merger, consolidation or reorganization less than 55% of the combined voting power of the then-outstanding securities of such corporation or person immediately after such transaction is held in the aggregate by the holders of the then-outstanding securities entitled to vote generally in the election of directors (the "Voting Stock") of DTE immediately prior to such transaction; (2) DTE sells or otherwise transfers all or substantially all of its assets to another corporation or other legal person, and as a result of such sale or transfer, less 55% of the combined voting power of the then-outstanding Voting Stock of such corporation or person immediately after such sale or transfer is held in the aggregate (directly or through ownership of Voting Stock of DTE or a Subsidiary (as hereinafter defined)) by the holders of Voting Stock of DTE immediately prior to such sale or transfer; (3) There is a report filed on Schedule 13D or Schedule 14D-1 (or any successor 6 schedule, form or report), each as promulgated pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), disclosing that any person (as the term "person" is used in Section 13(d)(3) or Section 14 (d)(2) of the Exchange Act) has become the beneficial owner (as the term "beneficial owner" is defined under Rule 13d-3 or any successor rule or regulation promulgated under the Exchange Act) of securities representing 20% or more of the combined voting power of the then-outstanding Voting Stock of DTE; (4) If, during any period of two consecutive years, individuals who at the beginning of any such period constitute the directors of DTE cease for any reason to constitute at least a majority thereof; provided, however, that for purposes of this paragraph (4) each director who is first elected, or first nominated for election, by DTE's stockholders, by a vote of at least two-thirds of the directors of DTE (or a committee thereof) then still in office schedule, form or report), each as promulgated pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), disclosing that any person (as the term "person" is used in Section 13(d)(3) or Section 14 (d)(2) of the Exchange Act) has become the beneficial owner (as the term "beneficial owner" is defined under Rule 13d-3 or any successor rule or regulation promulgated under the Exchange Act) of securities representing 20% or more of the combined voting power of the then-outstanding Voting Stock of DTE; (4) If, during any period of two consecutive years, individuals who at the beginning of any such period constitute the directors of DTE cease for any reason to constitute at least a majority thereof; provided, however, that for purposes of this paragraph (4) each director who is first elected, or first nominated for election, by DTE's stockholders, by a vote of at least two-thirds of the directors of DTE (or a committee thereof) then still in office who were directors of DTE at the beginning of any such period will be deemed to have been a director of DTE at the beginning of such period; or (5) The approval of the shareholders of DTE of a complete liquidation or dissolution of DTE. Notwithstanding the foregoing provisions of paragraph (3) above, unless otherwise determined in a specific case by majority vote of the Board of Directors of DTE, a "Change in Control" shall not be deemed to have occurred for purposes of paragraph (3) solely because (i) DTE, (ii) an entity in which DTE directly or indirectly beneficially owns 50% or more of the outstanding Voting Stock (a "Subsidiary"), or (iii) any DTE-sponsored employee stock ownership plan or any other employee benefit plan of DTE or any Subsidiary either files or becomes obligated to file a report or a proxy statement under or in response to Schedule 13D or Schedule 14D-1 (or any successor schedule, form or report or item therein) under the Exchange Act disclosing beneficial ownership by it of shares of Voting Stock, whether in excess of 20% or otherwise. In the event a Change in Control occurs during a Plan year, then, notwithstanding anything to the contrary in the foregoing provisions of the Plan, including but not limited to the Section entitled "Administration", no payments of Awards shall be made under the foregoing provisions of the Plan for such Plan year, but instead, (a) each Vice President and above at The Detroit Edison Company during the Plan year employed by the Company or an Affiliate immediately prior to the date on which the Change in Control occurs, (b) and each Vice President and above at The Detroit Edison Company who had terminated employment with the Company and its Affiliates during the Plan year by reason of retirement or disability (as such terms are defined above under "Awards") or death prior to the occurrence of the Change in Control but after having held and actively performed in one or more such positions for a total of at least seven months during the Plan year, shall have a right (or, in the case of the person's death, his or her beneficiary shall have the right) to an immediate cash payment of an amount determined by multiplying (i) the individual's actual base salary 7 (including applicable amounts deferred under Company-sponsored benefit plans) earned during the Plan year while a Vice President and above at The Detroit Edison Company prior to the occurrence of the Change in Control or earlier termination by retirement, disability or death, by (ii) the individual's applicable target percent of salary by position for the Plan year based on the assumption that established performance targets were met. Such payments shall be made within 30 days after the date on which the Change in Control occurs without the necessity of approval of the Board of Directors. 8 EXHIBIT 10.16 TRUST AGREEMENT (including applicable amounts deferred under Company-sponsored benefit plans) earned during the Plan year while a Vice President and above at The Detroit Edison Company prior to the occurrence of the Change in Control or earlier termination by retirement, disability or death, by (ii) the individual's applicable target percent of salary by position for the Plan year based on the assumption that established performance targets were met. Such payments shall be made within 30 days after the date on which the Change in Control occurs without the necessity of approval of the Board of Directors. 8 EXHIBIT 10.16 TRUST AGREEMENT FOR DTE ENERGY COMPANY CHANGE-IN-CONTROL SEVERANCE AGREEMENTS Between DTE Energy Company and Wachovia Bank, N.A. October 1, 1997 TABLE OF CONTENTS (Not a part of the Agreement) Page I. TRUST FUND...........................................................2 II. PAYMENTS TO TRUST BENEFICIARIES.....................................10 III. THE TRUSTEE'S RESPONSIBILITY REGARDING PAYMENTS TO A TRUST BENEFICIARY WHEN THE COMPANY IS INSOLVENT ...11 EXHIBIT 10.16 TRUST AGREEMENT FOR DTE ENERGY COMPANY CHANGE-IN-CONTROL SEVERANCE AGREEMENTS Between DTE Energy Company and Wachovia Bank, N.A. October 1, 1997 TABLE OF CONTENTS (Not a part of the Agreement) Page I. TRUST FUND...........................................................2 II. PAYMENTS TO TRUST BENEFICIARIES.....................................10 III. THE TRUSTEE'S RESPONSIBILITY REGARDING PAYMENTS TO A TRUST BENEFICIARY WHEN THE COMPANY IS INSOLVENT ...11 TABLE OF CONTENTS (Not a part of the Agreement) Page I. TRUST FUND...........................................................2 II. PAYMENTS TO TRUST BENEFICIARIES.....................................10 III. THE TRUSTEE'S RESPONSIBILITY REGARDING PAYMENTS TO A TRUST BENEFICIARY WHEN THE COMPANY IS INSOLVENT ...11 IV. PAYMENTS TO COMPANY.................................................13 V. INVESTMENT OF TRUST FUND............................................15 VI. INCOME OF THE TRUST.................................................16 VII. ACCOUNTING BY TRUSTEE...............................................16 VIII. RESPONSIBILITY AND INDEMNIFICATION OF TRUSTEE.......................18 IX. AMENDMENTS, ETC., TO PLANS AND EXHIBITS.............................23 X. REPLACEMENT OF TRUSTEE..............................................26 XI. AMENDMENT OR TERMINATION OF AGREEMENT...............................28 XII. SPECIAL DISTRIBUTIONS...............................................29 XIII. GENERAL PROVISIONS..................................................31 XIV. NOTICES.............................................................34 -i- TABLE OF DEFINITIONS (Not a part of the Agreement) Section "Accounting Firm" "Agreement" "Board" "CEO" "Change in Control" "Code" "Company" "ERISA" "Exchange Act" "Executives" "Fully Funded" "Insolvent" "Participants" "Plan(s)" "Potential Change in Control" "Subsidiary" "Successor" "Supplemental Benefits" "Trust Beneficiaries" "Trust" "Trustee" 4.2 Introduction 1.7 3.1 1.7 1.6 Introduction 1.6 1.4(d) 4.3 4.2 Recitals Recitals Recitals 1.4(d) 1.7 9.2.1 Recitals Recitals Recitals Introduction TABLE OF DEFINITIONS (Not a part of the Agreement) Section "Accounting Firm" "Agreement" "Board" "CEO" "Change in Control" "Code" "Company" "ERISA" "Exchange Act" "Executives" "Fully Funded" "Insolvent" "Participants" "Plan(s)" "Potential Change in Control" "Subsidiary" "Successor" "Supplemental Benefits" "Trust Beneficiaries" "Trust" "Trustee" "Voting Stock" 4.2 Introduction 1.7 3.1 1.7 1.6 Introduction 1.6 1.4(d) 4.3 4.2 Recitals Recitals Recitals 1.4(d) 1.7 9.2.1 Recitals Recitals Recitals Introduction 1.7.1 -ii- TRUST AGREEMENT FOR DTE ENERGY COMPANY CHANGE-IN-CONTROL SEVERANCE AGREEMENTS This trust agreement ("Agreement") made as of the 1st day of October 1997 by and between DTE Energy Company, a Michigan corporation (the "Company"), and Wachovia Bank, N.A., a national banking association (the "Trustee"). WITNESSETH: WHEREAS, the employees of the Company or of a Subsidiary (as that term is defined in Section 1.7) listed on Exhibit A hereto (the "Participants") and their beneficiaries may become entitled to benefits under the provisions of one or more of the individual agreements listed on Exhibit B hereto (individually a "Plan" and collectively the "Plans"), as the same have been or may hereafter be amended or restated, or any successor thereto, copies of which are appended hereto; WHEREAS, the Plans provide for certain severance and/or other benefits, and the Company wishes specifically to assure the payment to the Participants and their beneficiaries (the Participants and their respective beneficiaries being collectively referred to herein as the "Trust Beneficiaries") of amounts due thereunder (other than for payment or reimbursement of legal fees and expenses as provided in Section 7 of a Plan, or any successor provision thereto), (the amounts so payable being collectively referred to herein as the "Supplemental Benefits"); WHEREAS, the Company wishes to establish a trust (the "Trust") and to transfer to the Trust assets which shall be held therein subject to the claims of the creditors of the Company to the extent set forth in Article III hereof until (i) paid in full to all Trust Beneficiaries as Supplemental Benefits in such manner and as specified herein unless the Company is Insolvent (as that term is defined herein) at the time that such Supplemental Benefits become payable or (ii) otherwise disposed of pursuant to the terms of this TRUST AGREEMENT FOR DTE ENERGY COMPANY CHANGE-IN-CONTROL SEVERANCE AGREEMENTS This trust agreement ("Agreement") made as of the 1st day of October 1997 by and between DTE Energy Company, a Michigan corporation (the "Company"), and Wachovia Bank, N.A., a national banking association (the "Trustee"). WITNESSETH: WHEREAS, the employees of the Company or of a Subsidiary (as that term is defined in Section 1.7) listed on Exhibit A hereto (the "Participants") and their beneficiaries may become entitled to benefits under the provisions of one or more of the individual agreements listed on Exhibit B hereto (individually a "Plan" and collectively the "Plans"), as the same have been or may hereafter be amended or restated, or any successor thereto, copies of which are appended hereto; WHEREAS, the Plans provide for certain severance and/or other benefits, and the Company wishes specifically to assure the payment to the Participants and their beneficiaries (the Participants and their respective beneficiaries being collectively referred to herein as the "Trust Beneficiaries") of amounts due thereunder (other than for payment or reimbursement of legal fees and expenses as provided in Section 7 of a Plan, or any successor provision thereto), (the amounts so payable being collectively referred to herein as the "Supplemental Benefits"); WHEREAS, the Company wishes to establish a trust (the "Trust") and to transfer to the Trust assets which shall be held therein subject to the claims of the creditors of the Company to the extent set forth in Article III hereof until (i) paid in full to all Trust Beneficiaries as Supplemental Benefits in such manner and as specified herein unless the Company is Insolvent (as that term is defined herein) at the time that such Supplemental Benefits become payable or (ii) otherwise disposed of pursuant to the terms of this Agreement; and WHEREAS, the Company shall be considered "Insolvent" for purposes of this Agreement at such time as the Company (i) is subject to a pending proceeding as a debtor under the United States Bankruptcy Code, as heretofore or hereafter amended, or (ii) is unable to pay its debts as they become due; NOW, THEREFORE, the parties do hereby establish the Trust and agree that the Trust shall be comprised, held and disposed of as follows: I. TRUST FUND I.1 Subject to the claims of creditors to the extent set forth in Article III hereof, the Company hereby deposits with the Trustee in trust Five Thousand Dollars ($5,000), which shall become the principal of this Trust, to be held, administered and disposed of by the Trustee as herein provided. I.2 The Trust hereby established shall be revocable by the Company at any time prior to the date on which the first of the following occurs: a Change in Control (as that term is defined in Section 1.7) or a Potential Change in Control (as that term is defined in Section 1.4(d)); on or after such date, this Trust shall be irrevocable. In the event that a Change in Control or a Potential Change in Control has occurred, the Treasurer of the -2- Company or the Corporate Secretary of the Company shall so notify the Trustee promptly. The Trustee shall be entitled to rely upon such notice or upon a notice from the Executives (as that term is defined in Section 4.3) as to whether and when a Change in Control or a Potential Change in Control has occurred and shall not be required to make any independent verification of the occurrence of a Change in Control or a Potential Change in Control. the extent set forth in Article III hereof until (i) paid in full to all Trust Beneficiaries as Supplemental Benefits in such manner and as specified herein unless the Company is Insolvent (as that term is defined herein) at the time that such Supplemental Benefits become payable or (ii) otherwise disposed of pursuant to the terms of this Agreement; and WHEREAS, the Company shall be considered "Insolvent" for purposes of this Agreement at such time as the Company (i) is subject to a pending proceeding as a debtor under the United States Bankruptcy Code, as heretofore or hereafter amended, or (ii) is unable to pay its debts as they become due; NOW, THEREFORE, the parties do hereby establish the Trust and agree that the Trust shall be comprised, held and disposed of as follows: I. TRUST FUND I.1 Subject to the claims of creditors to the extent set forth in Article III hereof, the Company hereby deposits with the Trustee in trust Five Thousand Dollars ($5,000), which shall become the principal of this Trust, to be held, administered and disposed of by the Trustee as herein provided. I.2 The Trust hereby established shall be revocable by the Company at any time prior to the date on which the first of the following occurs: a Change in Control (as that term is defined in Section 1.7) or a Potential Change in Control (as that term is defined in Section 1.4(d)); on or after such date, this Trust shall be irrevocable. In the event that a Change in Control or a Potential Change in Control has occurred, the Treasurer of the -2- Company or the Corporate Secretary of the Company shall so notify the Trustee promptly. The Trustee shall be entitled to rely upon such notice or upon a notice from the Executives (as that term is defined in Section 4.3) as to whether and when a Change in Control or a Potential Change in Control has occurred and shall not be required to make any independent verification of the occurrence of a Change in Control or a Potential Change in Control. I.3 The principal of the Trust and any earnings thereon shall be held in trust separate and apart from other funds of the Company and shall be used exclusively for the uses and purposes herein set forth. No Trust Beneficiary shall have any preferred claim on, or any beneficial ownership interest in, any assets of the Trust prior to the time that such assets are paid to a Trust Beneficiary as Supplemental Benefits as provided herein. Any rights created under the Plans and this Agreement shall be mere unsecured contractual rights of Trust Beneficiaries with respect to the Company. The obligation of the Trustee to pay Supplemental Benefits pursuant to this Agreement constitutes merely an unfunded and unsecured promise to pay such Supplemental Benefits. I.4 (a) The Company may at any time or from time to time make additional deposits of cash or other property in the Trust or make provision for cash or other property to be transferred to the Trust to augment the principal to be held, administered and disposed of by the Trustee as herein provided, but no payment of all or any portion of the principal of the Trust or earnings -3- thereon shall be made to the Company or any other person or entity on behalf of the Company except as herein expressly provided. (b) Within 30 days following the occurrence of a Potential Change in Control (as that term is defined in this Section 1.4), the Company shall make a contribution to the Trust that is sufficient, taking into account the assets of the Trust prior to such contribution, to provide for the payment of all Supplemental Benefits and any other amounts that could become payable or reimbursable pursuant to the terms of this Agreement including, without limitation, the fees of the Trustee for a period of at least five years. (c) Within 90 days after the end of any calendar year ending after the Trust has become irrevocable, the Company shall make a contribution to the Trust that is sufficient, taking into account the assets of the Trust prior Company or the Corporate Secretary of the Company shall so notify the Trustee promptly. The Trustee shall be entitled to rely upon such notice or upon a notice from the Executives (as that term is defined in Section 4.3) as to whether and when a Change in Control or a Potential Change in Control has occurred and shall not be required to make any independent verification of the occurrence of a Change in Control or a Potential Change in Control. I.3 The principal of the Trust and any earnings thereon shall be held in trust separate and apart from other funds of the Company and shall be used exclusively for the uses and purposes herein set forth. No Trust Beneficiary shall have any preferred claim on, or any beneficial ownership interest in, any assets of the Trust prior to the time that such assets are paid to a Trust Beneficiary as Supplemental Benefits as provided herein. Any rights created under the Plans and this Agreement shall be mere unsecured contractual rights of Trust Beneficiaries with respect to the Company. The obligation of the Trustee to pay Supplemental Benefits pursuant to this Agreement constitutes merely an unfunded and unsecured promise to pay such Supplemental Benefits. I.4 (a) The Company may at any time or from time to time make additional deposits of cash or other property in the Trust or make provision for cash or other property to be transferred to the Trust to augment the principal to be held, administered and disposed of by the Trustee as herein provided, but no payment of all or any portion of the principal of the Trust or earnings -3- thereon shall be made to the Company or any other person or entity on behalf of the Company except as herein expressly provided. (b) Within 30 days following the occurrence of a Potential Change in Control (as that term is defined in this Section 1.4), the Company shall make a contribution to the Trust that is sufficient, taking into account the assets of the Trust prior to such contribution, to provide for the payment of all Supplemental Benefits and any other amounts that could become payable or reimbursable pursuant to the terms of this Agreement including, without limitation, the fees of the Trustee for a period of at least five years. (c) Within 90 days after the end of any calendar year ending after the Trust has become irrevocable, the Company shall make a contribution to the Trust that is sufficient, taking into account the assets of the Trust prior to such contribution, to provide for the payment of all Supplemental Benefits and any other amounts that could become payable or reimbursable pursuant to the terms of this Agreement. (d) A "Potential Change in Control" means the occurrence of any of the following events: (i) The Company enters into a letter of intent, agreement in principle or other agreement, the consummation of which would constitute a Change in Control (as that term is defined in Section 1.7); (ii) Any person (including the Company) makes a public announcement (including, without limitation, an -4- announcement made by filing a Schedule 13D or Schedule 14D-1 (or any successor schedule, form or report), each as promulgated pursuant to the Securities Exchange Act 1934 (the "Exchange Act")) stating a present intention to take actions that, if consummated, would constitute a Change in Control; or (iii) Any person (other than the Company or Subsidiary or any Company-sponsored or Subsidiary-sponsored employee stock ownership plan or any other employee benefit plan of the Company or any Subsidiary) is or becomes the beneficial owner (other than inadvertently within the meaning of the following sentence), directly or indirectly, of securities of the Company representing 10% or more of the combined voting power of the Voting Stock (as that term is defined in Section 1.7.1) of the Company. A person shall be considered to have become a beneficial owner inadvertently for purposes of the preceding sentence if the Board (as that term is defined in Section 1.7) determines in good faith that the person became such inadvertently, and such person divests as promptly as practicable a sufficient number of shares of Voting Stock of the Company so that such person would thereon shall be made to the Company or any other person or entity on behalf of the Company except as herein expressly provided. (b) Within 30 days following the occurrence of a Potential Change in Control (as that term is defined in this Section 1.4), the Company shall make a contribution to the Trust that is sufficient, taking into account the assets of the Trust prior to such contribution, to provide for the payment of all Supplemental Benefits and any other amounts that could become payable or reimbursable pursuant to the terms of this Agreement including, without limitation, the fees of the Trustee for a period of at least five years. (c) Within 90 days after the end of any calendar year ending after the Trust has become irrevocable, the Company shall make a contribution to the Trust that is sufficient, taking into account the assets of the Trust prior to such contribution, to provide for the payment of all Supplemental Benefits and any other amounts that could become payable or reimbursable pursuant to the terms of this Agreement. (d) A "Potential Change in Control" means the occurrence of any of the following events: (i) The Company enters into a letter of intent, agreement in principle or other agreement, the consummation of which would constitute a Change in Control (as that term is defined in Section 1.7); (ii) Any person (including the Company) makes a public announcement (including, without limitation, an -4- announcement made by filing a Schedule 13D or Schedule 14D-1 (or any successor schedule, form or report), each as promulgated pursuant to the Securities Exchange Act 1934 (the "Exchange Act")) stating a present intention to take actions that, if consummated, would constitute a Change in Control; or (iii) Any person (other than the Company or Subsidiary or any Company-sponsored or Subsidiary-sponsored employee stock ownership plan or any other employee benefit plan of the Company or any Subsidiary) is or becomes the beneficial owner (other than inadvertently within the meaning of the following sentence), directly or indirectly, of securities of the Company representing 10% or more of the combined voting power of the Voting Stock (as that term is defined in Section 1.7.1) of the Company. A person shall be considered to have become a beneficial owner inadvertently for purposes of the preceding sentence if the Board (as that term is defined in Section 1.7) determines in good faith that the person became such inadvertently, and such person divests as promptly as practicable a sufficient number of shares of Voting Stock of the Company so that such person would no longer is the beneficial owner, directly or indirectly, of securities of the Company representing 10% or more of the combined voting power of Voting Stock of the Company. (e) In the event the Company fails to pay over to the Trustee within seven days of notice and demand from the Trustee -5- any amount Determined to be payable by the Company to the Trustee under Section 1.4(b) or 1.4(c), Section 8.7 or any other provision of the Trust, the Trustee may commence legal action to compel the Company to pay to the Trustee any amount determined to be payable to it under the Trust. The Trustee may bring such action against the Company in any court of competent jurisdiction, and shall be entitled to recover for the benefit of the Trust from the Company such amount, plus interest for each day at the rate of interest per annum of two percentage points in excess of the prime lending rate as announced by the Trustee's banking department from the due date specified in the Trustee's notice and demand to the date of payment, plus all costs of collection including reasonable attorneys' fees and expenses of litigation. I.5 Not later than the date on which the Trust has become irrevocable, the Company shall (a) specify the nature, amounts and timing of the Supplemental Benefits to which each Trust Beneficiary may become entitled, subject to Article IX hereof, in an exhibit ("Exhibit C") which shall become a part of this Agreement and be incorporated announcement made by filing a Schedule 13D or Schedule 14D-1 (or any successor schedule, form or report), each as promulgated pursuant to the Securities Exchange Act 1934 (the "Exchange Act")) stating a present intention to take actions that, if consummated, would constitute a Change in Control; or (iii) Any person (other than the Company or Subsidiary or any Company-sponsored or Subsidiary-sponsored employee stock ownership plan or any other employee benefit plan of the Company or any Subsidiary) is or becomes the beneficial owner (other than inadvertently within the meaning of the following sentence), directly or indirectly, of securities of the Company representing 10% or more of the combined voting power of the Voting Stock (as that term is defined in Section 1.7.1) of the Company. A person shall be considered to have become a beneficial owner inadvertently for purposes of the preceding sentence if the Board (as that term is defined in Section 1.7) determines in good faith that the person became such inadvertently, and such person divests as promptly as practicable a sufficient number of shares of Voting Stock of the Company so that such person would no longer is the beneficial owner, directly or indirectly, of securities of the Company representing 10% or more of the combined voting power of Voting Stock of the Company. (e) In the event the Company fails to pay over to the Trustee within seven days of notice and demand from the Trustee -5- any amount Determined to be payable by the Company to the Trustee under Section 1.4(b) or 1.4(c), Section 8.7 or any other provision of the Trust, the Trustee may commence legal action to compel the Company to pay to the Trustee any amount determined to be payable to it under the Trust. The Trustee may bring such action against the Company in any court of competent jurisdiction, and shall be entitled to recover for the benefit of the Trust from the Company such amount, plus interest for each day at the rate of interest per annum of two percentage points in excess of the prime lending rate as announced by the Trustee's banking department from the due date specified in the Trustee's notice and demand to the date of payment, plus all costs of collection including reasonable attorneys' fees and expenses of litigation. I.5 Not later than the date on which the Trust has become irrevocable, the Company shall (a) specify the nature, amounts and timing of the Supplemental Benefits to which each Trust Beneficiary may become entitled, subject to Article IX hereof, in an exhibit ("Exhibit C") which shall become a part of this Agreement and be incorporated herein by this reference, (b) provide any corresponding revisions to Exhibits A and B that may be required and (c) provide the Trustee with copies of the Plans and any amendments thereto. I.6 The Trust is intended to be a grantor trust, within the meaning of section 671 of the Internal Revenue Code of 1986, as amended (the "Code"), or any successor provision thereto, and shall be construed accordingly. The purpose of the Trust is to -6- assure that the Company's obligations to the Participants pursuant to the Plans are fulfilled. The Trust is neither intended nor designed to qualify under section 401(a) of the Code or to be subject to the provisions of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"). The Trust established under this Agreement does not fund and is not intended to fund the Plans or any other employee benefit plan or program of the Company. Such Trust is and is intended to be a depository arrangement with the Trustee for the setting aside of cash and other assets of the Company for the meeting of part or all of its future obligations with respect to Supplemental Benefits to some or all of the Trust Beneficiaries under the Plans. I.7 As used in this Agreement, the term "Change in Control" shall mean the occurrence of any of the following events: I.7.1 The Company is merged, consolidated or reorganized into or with another corporation or other legal person, and as a result of such merger, consolidation or reorganization less than 55% of the combined voting power of the then-outstanding Voting Stock (the term "Voting Stock" for purposes of this Agreement meaning securities entitled to vote generally in the election of directors) of such corporation or person immediately after any amount Determined to be payable by the Company to the Trustee under Section 1.4(b) or 1.4(c), Section 8.7 or any other provision of the Trust, the Trustee may commence legal action to compel the Company to pay to the Trustee any amount determined to be payable to it under the Trust. The Trustee may bring such action against the Company in any court of competent jurisdiction, and shall be entitled to recover for the benefit of the Trust from the Company such amount, plus interest for each day at the rate of interest per annum of two percentage points in excess of the prime lending rate as announced by the Trustee's banking department from the due date specified in the Trustee's notice and demand to the date of payment, plus all costs of collection including reasonable attorneys' fees and expenses of litigation. I.5 Not later than the date on which the Trust has become irrevocable, the Company shall (a) specify the nature, amounts and timing of the Supplemental Benefits to which each Trust Beneficiary may become entitled, subject to Article IX hereof, in an exhibit ("Exhibit C") which shall become a part of this Agreement and be incorporated herein by this reference, (b) provide any corresponding revisions to Exhibits A and B that may be required and (c) provide the Trustee with copies of the Plans and any amendments thereto. I.6 The Trust is intended to be a grantor trust, within the meaning of section 671 of the Internal Revenue Code of 1986, as amended (the "Code"), or any successor provision thereto, and shall be construed accordingly. The purpose of the Trust is to -6- assure that the Company's obligations to the Participants pursuant to the Plans are fulfilled. The Trust is neither intended nor designed to qualify under section 401(a) of the Code or to be subject to the provisions of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"). The Trust established under this Agreement does not fund and is not intended to fund the Plans or any other employee benefit plan or program of the Company. Such Trust is and is intended to be a depository arrangement with the Trustee for the setting aside of cash and other assets of the Company for the meeting of part or all of its future obligations with respect to Supplemental Benefits to some or all of the Trust Beneficiaries under the Plans. I.7 As used in this Agreement, the term "Change in Control" shall mean the occurrence of any of the following events: I.7.1 The Company is merged, consolidated or reorganized into or with another corporation or other legal person, and as a result of such merger, consolidation or reorganization less than 55% of the combined voting power of the then-outstanding Voting Stock (the term "Voting Stock" for purposes of this Agreement meaning securities entitled to vote generally in the election of directors) of such corporation or person immediately after such transaction are held in the aggregate by the holders of Voting Stock of the Company immediately prior to such transaction; I.7.2 The Company sells or otherwise transfers all -7- or substantially all of its assets to another corporation or other legal person, and as a result of such sale or transfer less than 55% of the combined voting power of the then-outstanding Voting Stock of such corporation or person immediately after such sale or transfer is held in the aggregate (directly or through ownership of Voting Stock of the Company or a Subsidiary) by the holders of Voting Stock of the Company immediately prior to such sale or transfer; I.7.3 There is a report filed on Schedule 13D or Schedule 14D-1 (or any successor schedule, form or report), each as promulgated pursuant to the Exchange Act, disclosing that any person (as the term "person" is used in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) has become the beneficial owner (as the term "beneficial owner" is defined under Rule 13d-3 or any successor rule or regulation promulgated under the Exchange Act) of securities representing 20% or more of the combined voting power of the then-outstanding Voting Stock of the Company; assure that the Company's obligations to the Participants pursuant to the Plans are fulfilled. The Trust is neither intended nor designed to qualify under section 401(a) of the Code or to be subject to the provisions of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"). The Trust established under this Agreement does not fund and is not intended to fund the Plans or any other employee benefit plan or program of the Company. Such Trust is and is intended to be a depository arrangement with the Trustee for the setting aside of cash and other assets of the Company for the meeting of part or all of its future obligations with respect to Supplemental Benefits to some or all of the Trust Beneficiaries under the Plans. I.7 As used in this Agreement, the term "Change in Control" shall mean the occurrence of any of the following events: I.7.1 The Company is merged, consolidated or reorganized into or with another corporation or other legal person, and as a result of such merger, consolidation or reorganization less than 55% of the combined voting power of the then-outstanding Voting Stock (the term "Voting Stock" for purposes of this Agreement meaning securities entitled to vote generally in the election of directors) of such corporation or person immediately after such transaction are held in the aggregate by the holders of Voting Stock of the Company immediately prior to such transaction; I.7.2 The Company sells or otherwise transfers all -7- or substantially all of its assets to another corporation or other legal person, and as a result of such sale or transfer less than 55% of the combined voting power of the then-outstanding Voting Stock of such corporation or person immediately after such sale or transfer is held in the aggregate (directly or through ownership of Voting Stock of the Company or a Subsidiary) by the holders of Voting Stock of the Company immediately prior to such sale or transfer; I.7.3 There is a report filed on Schedule 13D or Schedule 14D-1 (or any successor schedule, form or report), each as promulgated pursuant to the Exchange Act, disclosing that any person (as the term "person" is used in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) has become the beneficial owner (as the term "beneficial owner" is defined under Rule 13d-3 or any successor rule or regulation promulgated under the Exchange Act) of securities representing 20% or more of the combined voting power of the then-outstanding Voting Stock of the Company; I.7.4 The Company files a report or proxy statement with the Securities and Exchange Commission pursuant to the Exchange Act disclosing in response to Form 8-K or Schedule 14A (or any successor schedule, form or report or item therein) that a change in control of the Company will occur in the future pursuant to a then-existing contract or transaction which when consummated would be a Change in Control determined without regard to this Section 1.7.4; I.7.5 If, during any period of two consecutive -8- years, individuals who at the beginning of any such period constitute the Directors of the Company cease for any reason to constitute at least a majority thereof; provided, however, that for purposes of this Section 1.7.5 each Director who is first elected, or first nominated for election by the Company's stockholders, by a vote of at least two-thirds of the Directors of the Company (or a committee thereof) then still in office who were Directors of the Company at the beginning of any such period will be deemed to have been a Director of the Company at the beginning of such period; or I.7.6 The approval by the shareholders of the Company of a complete liquidation or dissolution of the Company. Notwithstanding the foregoing provisions of Section 1.7.3 or 1.7.4, unless otherwise determined in a specific case by majority vote of the Board of Directors of the Company (the "Board"), a "Change in Control" shall not or substantially all of its assets to another corporation or other legal person, and as a result of such sale or transfer less than 55% of the combined voting power of the then-outstanding Voting Stock of such corporation or person immediately after such sale or transfer is held in the aggregate (directly or through ownership of Voting Stock of the Company or a Subsidiary) by the holders of Voting Stock of the Company immediately prior to such sale or transfer; I.7.3 There is a report filed on Schedule 13D or Schedule 14D-1 (or any successor schedule, form or report), each as promulgated pursuant to the Exchange Act, disclosing that any person (as the term "person" is used in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) has become the beneficial owner (as the term "beneficial owner" is defined under Rule 13d-3 or any successor rule or regulation promulgated under the Exchange Act) of securities representing 20% or more of the combined voting power of the then-outstanding Voting Stock of the Company; I.7.4 The Company files a report or proxy statement with the Securities and Exchange Commission pursuant to the Exchange Act disclosing in response to Form 8-K or Schedule 14A (or any successor schedule, form or report or item therein) that a change in control of the Company will occur in the future pursuant to a then-existing contract or transaction which when consummated would be a Change in Control determined without regard to this Section 1.7.4; I.7.5 If, during any period of two consecutive -8- years, individuals who at the beginning of any such period constitute the Directors of the Company cease for any reason to constitute at least a majority thereof; provided, however, that for purposes of this Section 1.7.5 each Director who is first elected, or first nominated for election by the Company's stockholders, by a vote of at least two-thirds of the Directors of the Company (or a committee thereof) then still in office who were Directors of the Company at the beginning of any such period will be deemed to have been a Director of the Company at the beginning of such period; or I.7.6 The approval by the shareholders of the Company of a complete liquidation or dissolution of the Company. Notwithstanding the foregoing provisions of Section 1.7.3 or 1.7.4, unless otherwise determined in a specific case by majority vote of the Board of Directors of the Company (the "Board"), a "Change in Control" shall not be deemed to have occurred for purposes of Section 1.7.3 or 1.7.4 solely because (A) the Company, (B) an entity in which the Company directly or indirectly beneficially owns 50% or more of the outstanding Voting Stock (a "Subsidiary"), or (C) any Company-sponsored employee stock ownership plan or any other employee benefit plan of the Company or any Subsidiary either files or becomes obligated to file a report or a proxy statement under or in response to Schedule 13D, Schedule 14D-1, Form 8-K or Schedule 14A (or any successor schedule, form or report or item therein) -9- under the Exchange Act disclosing beneficial ownership by it of shares of Voting Stock, whether in excess of 20% or otherwise, or because the Company reports that a Change in Control of the Company has occurred or will occur in the future by reason of such beneficial ownership. II. PAYMENTS TO TRUST BENEFICIARIES II.1 Provided that the Company is not Insolvent and commencing with the earlier to occur of (a) appropriate notice to the Trustee by the Company, or (b) the date on which the Trustee has been notified in accordance with Section 1.2 that a Change in Control has occurred, the Trustee shall make payments of Supplemental Benefits to each Trust Beneficiary from the assets of the Trust in compliance and conformity with the terms of the Plans and in accordance with Exhibit C, and subject to Article IX. II.2 The Trustee shall continue to pay Supplemental Benefits to the Trust Beneficiaries until the assets of the Trust years, individuals who at the beginning of any such period constitute the Directors of the Company cease for any reason to constitute at least a majority thereof; provided, however, that for purposes of this Section 1.7.5 each Director who is first elected, or first nominated for election by the Company's stockholders, by a vote of at least two-thirds of the Directors of the Company (or a committee thereof) then still in office who were Directors of the Company at the beginning of any such period will be deemed to have been a Director of the Company at the beginning of such period; or I.7.6 The approval by the shareholders of the Company of a complete liquidation or dissolution of the Company. Notwithstanding the foregoing provisions of Section 1.7.3 or 1.7.4, unless otherwise determined in a specific case by majority vote of the Board of Directors of the Company (the "Board"), a "Change in Control" shall not be deemed to have occurred for purposes of Section 1.7.3 or 1.7.4 solely because (A) the Company, (B) an entity in which the Company directly or indirectly beneficially owns 50% or more of the outstanding Voting Stock (a "Subsidiary"), or (C) any Company-sponsored employee stock ownership plan or any other employee benefit plan of the Company or any Subsidiary either files or becomes obligated to file a report or a proxy statement under or in response to Schedule 13D, Schedule 14D-1, Form 8-K or Schedule 14A (or any successor schedule, form or report or item therein) -9- under the Exchange Act disclosing beneficial ownership by it of shares of Voting Stock, whether in excess of 20% or otherwise, or because the Company reports that a Change in Control of the Company has occurred or will occur in the future by reason of such beneficial ownership. II. PAYMENTS TO TRUST BENEFICIARIES II.1 Provided that the Company is not Insolvent and commencing with the earlier to occur of (a) appropriate notice to the Trustee by the Company, or (b) the date on which the Trustee has been notified in accordance with Section 1.2 that a Change in Control has occurred, the Trustee shall make payments of Supplemental Benefits to each Trust Beneficiary from the assets of the Trust in compliance and conformity with the terms of the Plans and in accordance with Exhibit C, and subject to Article IX. II.2 The Trustee shall continue to pay Supplemental Benefits to the Trust Beneficiaries until the assets of the Trust are depleted, subject to Section 11.2 hereof. If any current payment by the Trustee under the terms of this Agreement would deplete the assets of the Trust below the amount necessary to provide adequately for Supplemental Benefits known to the Trustee to be due and payable thereafter, the Trustee shall nevertheless make the current payment when due. II.3 The Company may make payments of Supplemental Benefits to each Trust Beneficiary. The Company shall notify the Trustee of its decision to pay Supplemental Benefits directly at least 15 days prior to the time amounts are due to be paid to a Trust -10- Beneficiary. II.4 Nothing in this Agreement shall in any way diminish any rights of any Trust Beneficiary to pursue such Trust Beneficiary's rights as a general creditor of the Company with respect to Supplemental Benefits or otherwise, and the rights of each Trust Beneficiary under the respective Plan shall in no way be affected or diminished by any provision of this Agreement or action taken pursuant to this Agreement, except that any payment actually received by any Trust Beneficiary hereunder shall reduce dollar-per-dollar amounts otherwise due to such Trust Beneficiary pursuant to such Plan. III. THE TRUSTEE'S RESPONSIBILITY REGARDING PAYMENTS TO A TRUST BENEFICIARY WHEN THE COMPANY IS INSOLVENT under the Exchange Act disclosing beneficial ownership by it of shares of Voting Stock, whether in excess of 20% or otherwise, or because the Company reports that a Change in Control of the Company has occurred or will occur in the future by reason of such beneficial ownership. II. PAYMENTS TO TRUST BENEFICIARIES II.1 Provided that the Company is not Insolvent and commencing with the earlier to occur of (a) appropriate notice to the Trustee by the Company, or (b) the date on which the Trustee has been notified in accordance with Section 1.2 that a Change in Control has occurred, the Trustee shall make payments of Supplemental Benefits to each Trust Beneficiary from the assets of the Trust in compliance and conformity with the terms of the Plans and in accordance with Exhibit C, and subject to Article IX. II.2 The Trustee shall continue to pay Supplemental Benefits to the Trust Beneficiaries until the assets of the Trust are depleted, subject to Section 11.2 hereof. If any current payment by the Trustee under the terms of this Agreement would deplete the assets of the Trust below the amount necessary to provide adequately for Supplemental Benefits known to the Trustee to be due and payable thereafter, the Trustee shall nevertheless make the current payment when due. II.3 The Company may make payments of Supplemental Benefits to each Trust Beneficiary. The Company shall notify the Trustee of its decision to pay Supplemental Benefits directly at least 15 days prior to the time amounts are due to be paid to a Trust -10- Beneficiary. II.4 Nothing in this Agreement shall in any way diminish any rights of any Trust Beneficiary to pursue such Trust Beneficiary's rights as a general creditor of the Company with respect to Supplemental Benefits or otherwise, and the rights of each Trust Beneficiary under the respective Plan shall in no way be affected or diminished by any provision of this Agreement or action taken pursuant to this Agreement, except that any payment actually received by any Trust Beneficiary hereunder shall reduce dollar-per-dollar amounts otherwise due to such Trust Beneficiary pursuant to such Plan. III. THE TRUSTEE'S RESPONSIBILITY REGARDING PAYMENTS TO A TRUST BENEFICIARY WHEN THE COMPANY IS INSOLVENT III.1 At all times during the continuance of this Trust, the principal and income of the Trust shall be subject to claims of creditors of the Company as set forth in this Section 3.1. The Board and the Chief Executive Officer of the Company (the "CEO") shall have the duty to inform the Trustee in writing if either the Board or the CEO believes that the Company is Insolvent. If the Trustee receives a notice in writing from the Board or the CEO stating that the Company is Insolvent or if a person claiming to be a creditor of the Company alleges in writing to the Trustee that the Company has become Insolvent, the Trustee shall independently determine within 30 days after receipt of such notice whether the Company is Insolvent. Pending such determination, or if the Trustee has actual knowledge or has determined that the Company is Insolvent, the Trustee shall discontinue or refrain from making payments to any Trust -11- Beneficiary and hold the Trust assets for the benefit of the general creditors of the Company. The Trustee shall pay any undistributed principal and income in the Trust to the extent necessary to satisfy the claims of the creditors of the Company as a court of competent jurisdiction may direct. If the Trustee has discontinued or refrained from making payments to any Trust Beneficiary pursuant to this Section 3.1, the Trustee shall pay or resume payments to such Trust Beneficiary in accordance with this Agreement if the Trustee has determined that the Company is not Insolvent, or is no longer Insolvent (if the Trustee initially determined the Company to be Insolvent), or pursuant to the order of a court of competent jurisdiction. The Trustee shall have no duty to inquire as to whether the Company is Insolvent and may rely on information concerning the Insolvency of the Company Beneficiary. II.4 Nothing in this Agreement shall in any way diminish any rights of any Trust Beneficiary to pursue such Trust Beneficiary's rights as a general creditor of the Company with respect to Supplemental Benefits or otherwise, and the rights of each Trust Beneficiary under the respective Plan shall in no way be affected or diminished by any provision of this Agreement or action taken pursuant to this Agreement, except that any payment actually received by any Trust Beneficiary hereunder shall reduce dollar-per-dollar amounts otherwise due to such Trust Beneficiary pursuant to such Plan. III. THE TRUSTEE'S RESPONSIBILITY REGARDING PAYMENTS TO A TRUST BENEFICIARY WHEN THE COMPANY IS INSOLVENT III.1 At all times during the continuance of this Trust, the principal and income of the Trust shall be subject to claims of creditors of the Company as set forth in this Section 3.1. The Board and the Chief Executive Officer of the Company (the "CEO") shall have the duty to inform the Trustee in writing if either the Board or the CEO believes that the Company is Insolvent. If the Trustee receives a notice in writing from the Board or the CEO stating that the Company is Insolvent or if a person claiming to be a creditor of the Company alleges in writing to the Trustee that the Company has become Insolvent, the Trustee shall independently determine within 30 days after receipt of such notice whether the Company is Insolvent. Pending such determination, or if the Trustee has actual knowledge or has determined that the Company is Insolvent, the Trustee shall discontinue or refrain from making payments to any Trust -11- Beneficiary and hold the Trust assets for the benefit of the general creditors of the Company. The Trustee shall pay any undistributed principal and income in the Trust to the extent necessary to satisfy the claims of the creditors of the Company as a court of competent jurisdiction may direct. If the Trustee has discontinued or refrained from making payments to any Trust Beneficiary pursuant to this Section 3.1, the Trustee shall pay or resume payments to such Trust Beneficiary in accordance with this Agreement if the Trustee has determined that the Company is not Insolvent, or is no longer Insolvent (if the Trustee initially determined the Company to be Insolvent), or pursuant to the order of a court of competent jurisdiction. The Trustee shall have no duty to inquire as to whether the Company is Insolvent and may rely on information concerning the Insolvency of the Company that has been furnished to the Trustee by any creditor of the Company or by any person (other than an employee or director of the Company) acting with apparent or actual authority with respect to the Company. III.2 If the Trustee is precluded from paying Supplemental Benefits from the Trust assets pursuant to Section 3.1 hereof and such prohibition is subsequently removed, the Trustee shall pay the aggregate amount of all Supplemental Benefits that would have been paid to the Trust Beneficiaries in accordance with this Agreement during the period of such prohibition, less the aggregate amount of Supplemental Benefits paid to any Trust Beneficiary directly by the Company during any such period, together with interest on the net amount delayed determined at a -12- rate equal to the rate actually earned (including, without limitation, market appreciation or depreciation, plus receipt of interest and dividends) during such period with respect to the assets of the Trust corresponding to such net amount delayed. IV. PAYMENTS TO COMPANY IV.1 Except to the extent expressly contemplated by Section 1.2 hereof, this Article IV and Section 11.3, the Company shall have no right or power to direct the Trustee to return any of the Trust assets to the Company before all payments of Supplemental Benefits have been made to all Trust Beneficiaries as herein provided. Upon the written request of the Company made prior to the date on which the Trust becomes irrevocable, the Trustee shall return to the Company any Trust assets in excess of Five Thousand Dollars ($5,000) as may be specified in such request by the Company. Beneficiary and hold the Trust assets for the benefit of the general creditors of the Company. The Trustee shall pay any undistributed principal and income in the Trust to the extent necessary to satisfy the claims of the creditors of the Company as a court of competent jurisdiction may direct. If the Trustee has discontinued or refrained from making payments to any Trust Beneficiary pursuant to this Section 3.1, the Trustee shall pay or resume payments to such Trust Beneficiary in accordance with this Agreement if the Trustee has determined that the Company is not Insolvent, or is no longer Insolvent (if the Trustee initially determined the Company to be Insolvent), or pursuant to the order of a court of competent jurisdiction. The Trustee shall have no duty to inquire as to whether the Company is Insolvent and may rely on information concerning the Insolvency of the Company that has been furnished to the Trustee by any creditor of the Company or by any person (other than an employee or director of the Company) acting with apparent or actual authority with respect to the Company. III.2 If the Trustee is precluded from paying Supplemental Benefits from the Trust assets pursuant to Section 3.1 hereof and such prohibition is subsequently removed, the Trustee shall pay the aggregate amount of all Supplemental Benefits that would have been paid to the Trust Beneficiaries in accordance with this Agreement during the period of such prohibition, less the aggregate amount of Supplemental Benefits paid to any Trust Beneficiary directly by the Company during any such period, together with interest on the net amount delayed determined at a -12- rate equal to the rate actually earned (including, without limitation, market appreciation or depreciation, plus receipt of interest and dividends) during such period with respect to the assets of the Trust corresponding to such net amount delayed. IV. PAYMENTS TO COMPANY IV.1 Except to the extent expressly contemplated by Section 1.2 hereof, this Article IV and Section 11.3, the Company shall have no right or power to direct the Trustee to return any of the Trust assets to the Company before all payments of Supplemental Benefits have been made to all Trust Beneficiaries as herein provided. Upon the written request of the Company made prior to the date on which the Trust becomes irrevocable, the Trustee shall return to the Company any Trust assets in excess of Five Thousand Dollars ($5,000) as may be specified in such request by the Company. IV.2 From time to time, but in no event before the second anniversary of the date on which the Trust has become irrevocable, if and when requested by the Company to do so, the Trustee shall engage the services of nationally recognized independent accounting or consulting firm as may be mutually satisfactory to the Company and to the Trustee (the "Accounting Firm") to determine for purposes of this Section 4.2 the maximum present values of the future Supplemental Benefits that could become payable under the Plans with respect to the Trust Beneficiaries. The Trustee shall determine the fair market value of the Trust assets. The Company shall pay the fees of the Accounting Firm and of any appraiser engaged by the Trustee to -13- value any property held in the Trust. The Accounting Firm shall make its calculations based upon the assumptions set forth in Exhibit D hereto, or such other assumptions as are recommended by the Accounting Firm and approved by the Company and, if the Trust is irrevocable, by the Trustee. Thereafter, upon the request of the Company, the Trustee shall pay to the Company the excess, if any, of the balance in the Trust over 125% of the sum of (i) the aggregate of all of the Fully Funded amounts and (ii) any other amounts, as determined by the Trustee, that could become payable or reimbursable pursuant to the terms of this Agreement including, without limitation, the fees of the Trustee. For purposes of this Agreement the "Fully Funded" amount with respect to Participant shall be equal to the maximum present value of the future Supplemental Benefits that could become payable under the respective Plan with respect to the Trust Beneficiaries of such Participant. IV.3 For purposes of this Agreement, the term "Executives" shall refer to the three Participants who, in the sole judgment of the Trustee, have the greatest aggregate Fully Funded amounts and who have accepted such designation in writing. The determination of which Participants should be the Executives shall be made within 30 rate equal to the rate actually earned (including, without limitation, market appreciation or depreciation, plus receipt of interest and dividends) during such period with respect to the assets of the Trust corresponding to such net amount delayed. IV. PAYMENTS TO COMPANY IV.1 Except to the extent expressly contemplated by Section 1.2 hereof, this Article IV and Section 11.3, the Company shall have no right or power to direct the Trustee to return any of the Trust assets to the Company before all payments of Supplemental Benefits have been made to all Trust Beneficiaries as herein provided. Upon the written request of the Company made prior to the date on which the Trust becomes irrevocable, the Trustee shall return to the Company any Trust assets in excess of Five Thousand Dollars ($5,000) as may be specified in such request by the Company. IV.2 From time to time, but in no event before the second anniversary of the date on which the Trust has become irrevocable, if and when requested by the Company to do so, the Trustee shall engage the services of nationally recognized independent accounting or consulting firm as may be mutually satisfactory to the Company and to the Trustee (the "Accounting Firm") to determine for purposes of this Section 4.2 the maximum present values of the future Supplemental Benefits that could become payable under the Plans with respect to the Trust Beneficiaries. The Trustee shall determine the fair market value of the Trust assets. The Company shall pay the fees of the Accounting Firm and of any appraiser engaged by the Trustee to -13- value any property held in the Trust. The Accounting Firm shall make its calculations based upon the assumptions set forth in Exhibit D hereto, or such other assumptions as are recommended by the Accounting Firm and approved by the Company and, if the Trust is irrevocable, by the Trustee. Thereafter, upon the request of the Company, the Trustee shall pay to the Company the excess, if any, of the balance in the Trust over 125% of the sum of (i) the aggregate of all of the Fully Funded amounts and (ii) any other amounts, as determined by the Trustee, that could become payable or reimbursable pursuant to the terms of this Agreement including, without limitation, the fees of the Trustee. For purposes of this Agreement the "Fully Funded" amount with respect to Participant shall be equal to the maximum present value of the future Supplemental Benefits that could become payable under the respective Plan with respect to the Trust Beneficiaries of such Participant. IV.3 For purposes of this Agreement, the term "Executives" shall refer to the three Participants who, in the sole judgment of the Trustee, have the greatest aggregate Fully Funded amounts and who have accepted such designation in writing. The determination of which Participants should be the Executives shall be made within 30 days after (and as of) each of the date on which the Trust has become irrevocable and the first day of January of each year thereafter; provided, however, that an acceptance is not required from a Participant who is already serving as an Executive. The Trustee shall notify each Participant who, as a result of such determination, is no longer -14- an Executive. A Participant may resign as an Executive after providing not less than 30 days' notice in writing to the other Executives and to the Trustee; provided, however, that no such resignation shall become effective until the successor Executive has accepted such designation in writing. In the event of the resignation, death or incapacity of an Executive, the Trustee shall designate a successor Executive, which shall be the Participant (other than an Executive or a Participant who has declined to accept a designation as an Executive) who has the greatest aggregate Fully Funded amount and who accepts such designation in writing. Except as otherwise expressly provided herein, the Executives shall be considered to have "agreed" or "consented" to, or "approved" or "requested", a proposed action or decision under the terms of this Agreement when two or more of the Executives so indicate in writing to the Trustee. V. INVESTMENT OF TRUST FUND V.1 Prior to the date on which the Trust becomes irrevocable, the Trustee shall invest and reinvest the assets of value any property held in the Trust. The Accounting Firm shall make its calculations based upon the assumptions set forth in Exhibit D hereto, or such other assumptions as are recommended by the Accounting Firm and approved by the Company and, if the Trust is irrevocable, by the Trustee. Thereafter, upon the request of the Company, the Trustee shall pay to the Company the excess, if any, of the balance in the Trust over 125% of the sum of (i) the aggregate of all of the Fully Funded amounts and (ii) any other amounts, as determined by the Trustee, that could become payable or reimbursable pursuant to the terms of this Agreement including, without limitation, the fees of the Trustee. For purposes of this Agreement the "Fully Funded" amount with respect to Participant shall be equal to the maximum present value of the future Supplemental Benefits that could become payable under the respective Plan with respect to the Trust Beneficiaries of such Participant. IV.3 For purposes of this Agreement, the term "Executives" shall refer to the three Participants who, in the sole judgment of the Trustee, have the greatest aggregate Fully Funded amounts and who have accepted such designation in writing. The determination of which Participants should be the Executives shall be made within 30 days after (and as of) each of the date on which the Trust has become irrevocable and the first day of January of each year thereafter; provided, however, that an acceptance is not required from a Participant who is already serving as an Executive. The Trustee shall notify each Participant who, as a result of such determination, is no longer -14- an Executive. A Participant may resign as an Executive after providing not less than 30 days' notice in writing to the other Executives and to the Trustee; provided, however, that no such resignation shall become effective until the successor Executive has accepted such designation in writing. In the event of the resignation, death or incapacity of an Executive, the Trustee shall designate a successor Executive, which shall be the Participant (other than an Executive or a Participant who has declined to accept a designation as an Executive) who has the greatest aggregate Fully Funded amount and who accepts such designation in writing. Except as otherwise expressly provided herein, the Executives shall be considered to have "agreed" or "consented" to, or "approved" or "requested", a proposed action or decision under the terms of this Agreement when two or more of the Executives so indicate in writing to the Trustee. V. INVESTMENT OF TRUST FUND V.1 Prior to the date on which the Trust becomes irrevocable, the Trustee shall invest and reinvest the assets of the Trust as the Company or its designee shall prescribe in writing from time to time. V.2 On or after the date on which the Trust becomes irrevocable, or in the absence of the instructions from the Company specified in Section 5.1, the provisions of this Section 5.2 shall apply to the investment of the Trust assets. The investment objective of the Trustee shall be to preserve the principal of the Trust while obtaining a reasonable total rate of return, measurement of which shall include, without limitation, -15- market appreciation or depreciation plus receipt of interest and dividends. The Trustee shall be mindful, in the course of its management of the Trust, of the liquidity demands on the Trust. V.3 The Trustee shall have the sole power to invest the assets of the Trust, in accordance with the provisions of Sections 5.1 and 5.2. The Trustee shall not be liable for any failure to maximize income on such portion of the Trust assets as may be from time to time invested or reinvested as set forth above, nor for any loss of principal or income due to the liquidation of any investment that the Trustee, in its sole discretion, believes necessary to make payments or to reimburse expenses under the terms of this Agreement. The Trustee shall have the right to invest assets of the Trust for short-term investment periods, pending distribution or long-term investment of such assets, as the Trustee may deem proper and suitable in non-interest bearing deposit accounts (including any such accounts offered or maintained by the Trustee or any successor or affiliated corporation). Nothing in this Agreement shall preclude the commingling of Trust assets for investment. VI. INCOME OF THE TRUST an Executive. A Participant may resign as an Executive after providing not less than 30 days' notice in writing to the other Executives and to the Trustee; provided, however, that no such resignation shall become effective until the successor Executive has accepted such designation in writing. In the event of the resignation, death or incapacity of an Executive, the Trustee shall designate a successor Executive, which shall be the Participant (other than an Executive or a Participant who has declined to accept a designation as an Executive) who has the greatest aggregate Fully Funded amount and who accepts such designation in writing. Except as otherwise expressly provided herein, the Executives shall be considered to have "agreed" or "consented" to, or "approved" or "requested", a proposed action or decision under the terms of this Agreement when two or more of the Executives so indicate in writing to the Trustee. V. INVESTMENT OF TRUST FUND V.1 Prior to the date on which the Trust becomes irrevocable, the Trustee shall invest and reinvest the assets of the Trust as the Company or its designee shall prescribe in writing from time to time. V.2 On or after the date on which the Trust becomes irrevocable, or in the absence of the instructions from the Company specified in Section 5.1, the provisions of this Section 5.2 shall apply to the investment of the Trust assets. The investment objective of the Trustee shall be to preserve the principal of the Trust while obtaining a reasonable total rate of return, measurement of which shall include, without limitation, -15- market appreciation or depreciation plus receipt of interest and dividends. The Trustee shall be mindful, in the course of its management of the Trust, of the liquidity demands on the Trust. V.3 The Trustee shall have the sole power to invest the assets of the Trust, in accordance with the provisions of Sections 5.1 and 5.2. The Trustee shall not be liable for any failure to maximize income on such portion of the Trust assets as may be from time to time invested or reinvested as set forth above, nor for any loss of principal or income due to the liquidation of any investment that the Trustee, in its sole discretion, believes necessary to make payments or to reimburse expenses under the terms of this Agreement. The Trustee shall have the right to invest assets of the Trust for short-term investment periods, pending distribution or long-term investment of such assets, as the Trustee may deem proper and suitable in non-interest bearing deposit accounts (including any such accounts offered or maintained by the Trustee or any successor or affiliated corporation). Nothing in this Agreement shall preclude the commingling of Trust assets for investment. VI. INCOME OF THE TRUST VI.1 Except as provided in Articles III and IV, during the continuance of this Trust, all net income of the Trust shall be retained in the Trust. VII. ACCOUNTING BY TRUSTEE VII.1 The Trustee shall maintain such books, records and accounts as may be necessary for the proper administration of the Trust assets, including such specific records as shall be agreed -16- upon in writing by the Company and the Trustee. Within 60 days following the close of each calendar year that includes or commences after the date of this Agreement until the termination of this Trust or the removal or resignation of the Trustee (and within 60 days after the date of such termination, removal or resignation), the Trustee shall render to the Company and, on or after the date on which the Trust has become irrevocable, the Executives an accounting with respect to the Trust assets as of the end of the then most recent calendar year (and as of the date of such termination, removal or resignation, as the case may be). The Trustee shall furnish to the Company on an annual basis (or as the Company shall direct from time to time) and in a timely manner such information regarding the Trust as the Company shall require for purposes of preparing its statements of financial condition. Upon the written request of the Company or, on or after the date on which the Trust has become market appreciation or depreciation plus receipt of interest and dividends. The Trustee shall be mindful, in the course of its management of the Trust, of the liquidity demands on the Trust. V.3 The Trustee shall have the sole power to invest the assets of the Trust, in accordance with the provisions of Sections 5.1 and 5.2. The Trustee shall not be liable for any failure to maximize income on such portion of the Trust assets as may be from time to time invested or reinvested as set forth above, nor for any loss of principal or income due to the liquidation of any investment that the Trustee, in its sole discretion, believes necessary to make payments or to reimburse expenses under the terms of this Agreement. The Trustee shall have the right to invest assets of the Trust for short-term investment periods, pending distribution or long-term investment of such assets, as the Trustee may deem proper and suitable in non-interest bearing deposit accounts (including any such accounts offered or maintained by the Trustee or any successor or affiliated corporation). Nothing in this Agreement shall preclude the commingling of Trust assets for investment. VI. INCOME OF THE TRUST VI.1 Except as provided in Articles III and IV, during the continuance of this Trust, all net income of the Trust shall be retained in the Trust. VII. ACCOUNTING BY TRUSTEE VII.1 The Trustee shall maintain such books, records and accounts as may be necessary for the proper administration of the Trust assets, including such specific records as shall be agreed -16- upon in writing by the Company and the Trustee. Within 60 days following the close of each calendar year that includes or commences after the date of this Agreement until the termination of this Trust or the removal or resignation of the Trustee (and within 60 days after the date of such termination, removal or resignation), the Trustee shall render to the Company and, on or after the date on which the Trust has become irrevocable, the Executives an accounting with respect to the Trust assets as of the end of the then most recent calendar year (and as of the date of such termination, removal or resignation, as the case may be). The Trustee shall furnish to the Company on an annual basis (or as the Company shall direct from time to time) and in a timely manner such information regarding the Trust as the Company shall require for purposes of preparing its statements of financial condition. Upon the written request of the Company or, on or after the date on which the Trust has become irrevocable, an Executive, the Trustee shall deliver to such Executive or the Company, as the case may be, a written report setting forth the amount held in the Trust and a record of the deposits made with respect thereto by the Company. Absent compelling circumstances, the Trustee shall not be required to respond to more than one such request made within any calendar year. Unless the Company or any Executive shall have filed with the Trustee written exception or objection to the statement and account furnished by the Trustee within 90 days after receipt thereof, the Company and the Trust Beneficiaries shall be deemed to have approved such statement and account, and in such case the Trustee shall be -17- forever released and discharged with respect to all matters and things reported in such statement and account as though it had been settled by a decree of a court of competent jurisdiction in an action or proceeding to which the Company and the Trust Beneficiaries were parties. VIII. RESPONSIBILITY AND INDEMNIFICATION OF TRUSTEE VIII.1 The duties and responsibilities of the Trustee shall be limited to those expressly set forth in this Agreement, and no implied covenants or obligations shall be read into this Agreement against the Trustee. VIII.2 In addition to and without limiting any other provision of this Agreement, on or after the date on which the Trust has become irrevocable, the Trustee shall, in its sole discretion, based upon the information furnished to it by the Company and/or the Participants and any additional information that it may reasonably request, (a) make upon in writing by the Company and the Trustee. Within 60 days following the close of each calendar year that includes or commences after the date of this Agreement until the termination of this Trust or the removal or resignation of the Trustee (and within 60 days after the date of such termination, removal or resignation), the Trustee shall render to the Company and, on or after the date on which the Trust has become irrevocable, the Executives an accounting with respect to the Trust assets as of the end of the then most recent calendar year (and as of the date of such termination, removal or resignation, as the case may be). The Trustee shall furnish to the Company on an annual basis (or as the Company shall direct from time to time) and in a timely manner such information regarding the Trust as the Company shall require for purposes of preparing its statements of financial condition. Upon the written request of the Company or, on or after the date on which the Trust has become irrevocable, an Executive, the Trustee shall deliver to such Executive or the Company, as the case may be, a written report setting forth the amount held in the Trust and a record of the deposits made with respect thereto by the Company. Absent compelling circumstances, the Trustee shall not be required to respond to more than one such request made within any calendar year. Unless the Company or any Executive shall have filed with the Trustee written exception or objection to the statement and account furnished by the Trustee within 90 days after receipt thereof, the Company and the Trust Beneficiaries shall be deemed to have approved such statement and account, and in such case the Trustee shall be -17- forever released and discharged with respect to all matters and things reported in such statement and account as though it had been settled by a decree of a court of competent jurisdiction in an action or proceeding to which the Company and the Trust Beneficiaries were parties. VIII. RESPONSIBILITY AND INDEMNIFICATION OF TRUSTEE VIII.1 The duties and responsibilities of the Trustee shall be limited to those expressly set forth in this Agreement, and no implied covenants or obligations shall be read into this Agreement against the Trustee. VIII.2 In addition to and without limiting any other provision of this Agreement, on or after the date on which the Trust has become irrevocable, the Trustee shall, in its sole discretion, based upon the information furnished to it by the Company and/or the Participants and any additional information that it may reasonably request, (a) make all decisions regarding whether a Trust Beneficiary is eligible for the payment of Supplemental Benefits, the nature, amount and timing of such Supplemental Benefits, and any other decisions pertinent to the exercise of the Trustee's duties and responsibilities under this Agreement, and (b) exercise any power or discretion granted pursuant to the Plans to the Board, any committee of the Board, or to any other committee, entity or person. In connection with the exercise of such duties, responsibilities, power and discretion, the Trustee (i) shall be entitled to rely upon any information furnished to it in accordance with the provisions of this Agreement, (ii) shall not be required to make any -18- independent verification of such information, and (iii) may, in its sole discretion, waive any requirement to furnish information to it. The Company hereby agrees that it will not contest, dispute or otherwise challenge any decision made by the Trustee pursuant to the terms of this Agreement. VIII.3 If all or any part of the Trust assets are at any time attached, garnished, or levied upon by any court order, or in case the payment, assignment, transfer, conveyance or delivery of any such property shall be stayed or enjoined by any court order, or in case any order, judgment or decree shall be made or entered by a court affecting such property or any part thereof, then in any of such events the Trustee shall be authorized, in its sole discretion, to rely upon and comply with any such order, judgment or decree, and it shall not be liable to the Company or any Trust Beneficiary by reason of such compliance even though such order, judgment or decree subsequently may be reversed, modified, annulled, set aside or vacated. VIII.4 The Trustee shall act with the care, skill, prudence and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims; provided, however, that the Trustee shall incur no liability to forever released and discharged with respect to all matters and things reported in such statement and account as though it had been settled by a decree of a court of competent jurisdiction in an action or proceeding to which the Company and the Trust Beneficiaries were parties. VIII. RESPONSIBILITY AND INDEMNIFICATION OF TRUSTEE VIII.1 The duties and responsibilities of the Trustee shall be limited to those expressly set forth in this Agreement, and no implied covenants or obligations shall be read into this Agreement against the Trustee. VIII.2 In addition to and without limiting any other provision of this Agreement, on or after the date on which the Trust has become irrevocable, the Trustee shall, in its sole discretion, based upon the information furnished to it by the Company and/or the Participants and any additional information that it may reasonably request, (a) make all decisions regarding whether a Trust Beneficiary is eligible for the payment of Supplemental Benefits, the nature, amount and timing of such Supplemental Benefits, and any other decisions pertinent to the exercise of the Trustee's duties and responsibilities under this Agreement, and (b) exercise any power or discretion granted pursuant to the Plans to the Board, any committee of the Board, or to any other committee, entity or person. In connection with the exercise of such duties, responsibilities, power and discretion, the Trustee (i) shall be entitled to rely upon any information furnished to it in accordance with the provisions of this Agreement, (ii) shall not be required to make any -18- independent verification of such information, and (iii) may, in its sole discretion, waive any requirement to furnish information to it. The Company hereby agrees that it will not contest, dispute or otherwise challenge any decision made by the Trustee pursuant to the terms of this Agreement. VIII.3 If all or any part of the Trust assets are at any time attached, garnished, or levied upon by any court order, or in case the payment, assignment, transfer, conveyance or delivery of any such property shall be stayed or enjoined by any court order, or in case any order, judgment or decree shall be made or entered by a court affecting such property or any part thereof, then in any of such events the Trustee shall be authorized, in its sole discretion, to rely upon and comply with any such order, judgment or decree, and it shall not be liable to the Company or any Trust Beneficiary by reason of such compliance even though such order, judgment or decree subsequently may be reversed, modified, annulled, set aside or vacated. VIII.4 The Trustee shall act with the care, skill, prudence and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims; provided, however, that the Trustee shall incur no liability to anyone for any action taken pursuant to a direction, request, or approval given by the Company or any Executive or Trust Beneficiary contemplated by and complying with the terms of this Agreement. The Trustee shall discharge its responsibility for the investment, management and control of the -19- Trust assets solely in the interest of the Trust Beneficiaries and for the exclusive purpose of assuring that, to the extent of available Trust assets, and in accordance with the terms of this Agreement, all payments of Supplemental Benefits are made when due to the Trust Beneficiaries. VIII.5 The Trustee may consult with legal counsel (who may be counsel for the Company) to be selected by it, and the Trustee shall not be liable for any action taken or suffered by it in accordance with the advice of such counsel. VIII.6 The Trustee shall be reimbursed by the Company for its reasonable expenses incurred in connection with the performance of its duties hereunder (including, but not limited to, the fees and expenses of counsel, accountants and others incurred pursuant to Section 1.4(e), 8.5, 8.11 or 12.2) and shall be paid reasonable fees for the performance of such duties in the manner provided by Section 8.7. independent verification of such information, and (iii) may, in its sole discretion, waive any requirement to furnish information to it. The Company hereby agrees that it will not contest, dispute or otherwise challenge any decision made by the Trustee pursuant to the terms of this Agreement. VIII.3 If all or any part of the Trust assets are at any time attached, garnished, or levied upon by any court order, or in case the payment, assignment, transfer, conveyance or delivery of any such property shall be stayed or enjoined by any court order, or in case any order, judgment or decree shall be made or entered by a court affecting such property or any part thereof, then in any of such events the Trustee shall be authorized, in its sole discretion, to rely upon and comply with any such order, judgment or decree, and it shall not be liable to the Company or any Trust Beneficiary by reason of such compliance even though such order, judgment or decree subsequently may be reversed, modified, annulled, set aside or vacated. VIII.4 The Trustee shall act with the care, skill, prudence and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims; provided, however, that the Trustee shall incur no liability to anyone for any action taken pursuant to a direction, request, or approval given by the Company or any Executive or Trust Beneficiary contemplated by and complying with the terms of this Agreement. The Trustee shall discharge its responsibility for the investment, management and control of the -19- Trust assets solely in the interest of the Trust Beneficiaries and for the exclusive purpose of assuring that, to the extent of available Trust assets, and in accordance with the terms of this Agreement, all payments of Supplemental Benefits are made when due to the Trust Beneficiaries. VIII.5 The Trustee may consult with legal counsel (who may be counsel for the Company) to be selected by it, and the Trustee shall not be liable for any action taken or suffered by it in accordance with the advice of such counsel. VIII.6 The Trustee shall be reimbursed by the Company for its reasonable expenses incurred in connection with the performance of its duties hereunder (including, but not limited to, the fees and expenses of counsel, accountants and others incurred pursuant to Section 1.4(e), 8.5, 8.11 or 12.2) and shall be paid reasonable fees for the performance of such duties in the manner provided by Section 8.7. VIII.7 The Company agrees to indemnify and hold harmless the Trustee from and against any and all damages, losses, claims or expenses as incurred (including expenses of investigation and fees and disbursements of counsel to the Trustee and any taxes imposed on the Trust assets or income of the Trust) arising out of or in connection with the performance by the Trustee of its duties hereunder, other than such damages, losses, claims or expenses arising out of the Trustee's gross negligence or willful misconduct. The Trustee shall not be required to undertake or to defend any litigation arising in connection with this Agreement unless it be first indemnified by the Company against its -20- prospective costs, expenses and liabilities (including, without limitation, attorneys' fees and expenses) relating thereto, and the Company hereby agrees to indemnify the Trustee and be primarily liable for such costs, expenses, and liabilities. Any amount payable to the Trustee under Section 1.4(e), Section 8.6 or this Section 8.7 shall be paid by the Company promptly upon demand therefor by the Trustee or, in the event that the Company fails to make such payment within 30 days of such demand, from the Trust assets. In the event that payment is made hereunder to the Trustee from the Trust assets, the Trustee shall promptly notify the Company in writing of the amount of such payment. The Company agrees that, upon receipt of such notice, it will deliver to the Trustee to be held in the Trust an amount in cash equal to any payments made from the Trust assets to the Trustee pursuant to Section 1.4(e), Section 8.6 or this Section 8.7. The failure of the Company to transfer any such amount shall not in any way impair the Trustee's right to indemnification, reimbursement and payment pursuant to Section 1.4(e), Section 8.6 or this Section 8.7. Trust assets solely in the interest of the Trust Beneficiaries and for the exclusive purpose of assuring that, to the extent of available Trust assets, and in accordance with the terms of this Agreement, all payments of Supplemental Benefits are made when due to the Trust Beneficiaries. VIII.5 The Trustee may consult with legal counsel (who may be counsel for the Company) to be selected by it, and the Trustee shall not be liable for any action taken or suffered by it in accordance with the advice of such counsel. VIII.6 The Trustee shall be reimbursed by the Company for its reasonable expenses incurred in connection with the performance of its duties hereunder (including, but not limited to, the fees and expenses of counsel, accountants and others incurred pursuant to Section 1.4(e), 8.5, 8.11 or 12.2) and shall be paid reasonable fees for the performance of such duties in the manner provided by Section 8.7. VIII.7 The Company agrees to indemnify and hold harmless the Trustee from and against any and all damages, losses, claims or expenses as incurred (including expenses of investigation and fees and disbursements of counsel to the Trustee and any taxes imposed on the Trust assets or income of the Trust) arising out of or in connection with the performance by the Trustee of its duties hereunder, other than such damages, losses, claims or expenses arising out of the Trustee's gross negligence or willful misconduct. The Trustee shall not be required to undertake or to defend any litigation arising in connection with this Agreement unless it be first indemnified by the Company against its -20- prospective costs, expenses and liabilities (including, without limitation, attorneys' fees and expenses) relating thereto, and the Company hereby agrees to indemnify the Trustee and be primarily liable for such costs, expenses, and liabilities. Any amount payable to the Trustee under Section 1.4(e), Section 8.6 or this Section 8.7 shall be paid by the Company promptly upon demand therefor by the Trustee or, in the event that the Company fails to make such payment within 30 days of such demand, from the Trust assets. In the event that payment is made hereunder to the Trustee from the Trust assets, the Trustee shall promptly notify the Company in writing of the amount of such payment. The Company agrees that, upon receipt of such notice, it will deliver to the Trustee to be held in the Trust an amount in cash equal to any payments made from the Trust assets to the Trustee pursuant to Section 1.4(e), Section 8.6 or this Section 8.7. The failure of the Company to transfer any such amount shall not in any way impair the Trustee's right to indemnification, reimbursement and payment pursuant to Section 1.4(e), Section 8.6 or this Section 8.7. VIII.8 The Trustee may vote any stock or other securities and exercise any right appurtenant to any stock, other securities or other property held hereunder, either in person or by general or limited proxy, power of attorney or other instrument. VIII.9 The Trustee may hold securities in bearer form and may register securities and other property held in the Trust fund in its own name or in the name of a nominee, combine -21- certificates representing securities with certificates of the same issue held by the Trustee in other fiduciary capacities, and deposit, or arrange for deposit of, property with any depository; provided that the books and records of the Trustee shall at all times show that all such securities are part of the assets of the Trust. VIII.10 The Trustee may and shall exercise all rights appurtenant to any letter of credit made payable to the Trustee of the Trust for the benefit of the Trust in accordance with the terms of such letter of credit. VIII.11 The Trustee may hire agents, accountants, actuaries, investment advisors, financial consultants or other professionals, who may be agents, accountants, actuaries, investment advisors, financial consultants, or otherwise act in a professional capacity, as the case may be, for the Company or with respect to any Plan, to assist the Trustee in performing any of its duties hereunder. prospective costs, expenses and liabilities (including, without limitation, attorneys' fees and expenses) relating thereto, and the Company hereby agrees to indemnify the Trustee and be primarily liable for such costs, expenses, and liabilities. Any amount payable to the Trustee under Section 1.4(e), Section 8.6 or this Section 8.7 shall be paid by the Company promptly upon demand therefor by the Trustee or, in the event that the Company fails to make such payment within 30 days of such demand, from the Trust assets. In the event that payment is made hereunder to the Trustee from the Trust assets, the Trustee shall promptly notify the Company in writing of the amount of such payment. The Company agrees that, upon receipt of such notice, it will deliver to the Trustee to be held in the Trust an amount in cash equal to any payments made from the Trust assets to the Trustee pursuant to Section 1.4(e), Section 8.6 or this Section 8.7. The failure of the Company to transfer any such amount shall not in any way impair the Trustee's right to indemnification, reimbursement and payment pursuant to Section 1.4(e), Section 8.6 or this Section 8.7. VIII.8 The Trustee may vote any stock or other securities and exercise any right appurtenant to any stock, other securities or other property held hereunder, either in person or by general or limited proxy, power of attorney or other instrument. VIII.9 The Trustee may hold securities in bearer form and may register securities and other property held in the Trust fund in its own name or in the name of a nominee, combine -21- certificates representing securities with certificates of the same issue held by the Trustee in other fiduciary capacities, and deposit, or arrange for deposit of, property with any depository; provided that the books and records of the Trustee shall at all times show that all such securities are part of the assets of the Trust. VIII.10 The Trustee may and shall exercise all rights appurtenant to any letter of credit made payable to the Trustee of the Trust for the benefit of the Trust in accordance with the terms of such letter of credit. VIII.11 The Trustee may hire agents, accountants, actuaries, investment advisors, financial consultants or other professionals, who may be agents, accountants, actuaries, investment advisors, financial consultants, or otherwise act in a professional capacity, as the case may be, for the Company or with respect to any Plan, to assist the Trustee in performing any of its duties hereunder. VIII.12 The Trustee shall have, without exclusion, all powers conferred on trustees by applicable law unless expressly provided otherwise herein. VIII.13 Notwithstanding any other provision of this Agreement, in the event of the termination of the Trust, or the resignation or discharge of the Trustee, the Trustee shall have the right to a settlement of its accounts in accordance with the procedures set forth in Section 7.1, which may be made, at the option of the Trustee, either (a) by a judicial settlement in a court of competent jurisdiction, or (b) by agreement of -22- settlement, release and indemnity from the Company to the Trustee. IX. AMENDMENTS, ETC., TO PLANS AND EXHIBITS IX.1 Prior to the date on which the Trust becomes irrevocable and provided that Exhibit A, Exhibit B or Exhibit C, as the case may be, has previously been furnished to the Trustee, the provisions of this Section 9.1 shall apply. IX.1.1 The Company shall furnish the Trustee with any amendments, restatements, or other changes in the Plans, and the Company shall prescribe or amend, as the case may be, Exhibit B or Exhibit C hereto to reflect any such amendment, restatement, or other change, or any changes in the compensation of the Participants, or otherwise. IX.1.2 At such time as may in the judgment of the Company be appropriate, the Company shall furnish to the Trustee any amendment to Exhibit A and/or Exhibit B that modifies one or more lists of Participants and any corresponding amendment to Exhibit C required as a result of such amendment to Exhibit A and/or Exhibit B. certificates representing securities with certificates of the same issue held by the Trustee in other fiduciary capacities, and deposit, or arrange for deposit of, property with any depository; provided that the books and records of the Trustee shall at all times show that all such securities are part of the assets of the Trust. VIII.10 The Trustee may and shall exercise all rights appurtenant to any letter of credit made payable to the Trustee of the Trust for the benefit of the Trust in accordance with the terms of such letter of credit. VIII.11 The Trustee may hire agents, accountants, actuaries, investment advisors, financial consultants or other professionals, who may be agents, accountants, actuaries, investment advisors, financial consultants, or otherwise act in a professional capacity, as the case may be, for the Company or with respect to any Plan, to assist the Trustee in performing any of its duties hereunder. VIII.12 The Trustee shall have, without exclusion, all powers conferred on trustees by applicable law unless expressly provided otherwise herein. VIII.13 Notwithstanding any other provision of this Agreement, in the event of the termination of the Trust, or the resignation or discharge of the Trustee, the Trustee shall have the right to a settlement of its accounts in accordance with the procedures set forth in Section 7.1, which may be made, at the option of the Trustee, either (a) by a judicial settlement in a court of competent jurisdiction, or (b) by agreement of -22- settlement, release and indemnity from the Company to the Trustee. IX. AMENDMENTS, ETC., TO PLANS AND EXHIBITS IX.1 Prior to the date on which the Trust becomes irrevocable and provided that Exhibit A, Exhibit B or Exhibit C, as the case may be, has previously been furnished to the Trustee, the provisions of this Section 9.1 shall apply. IX.1.1 The Company shall furnish the Trustee with any amendments, restatements, or other changes in the Plans, and the Company shall prescribe or amend, as the case may be, Exhibit B or Exhibit C hereto to reflect any such amendment, restatement, or other change, or any changes in the compensation of the Participants, or otherwise. IX.1.2 At such time as may in the judgment of the Company be appropriate, the Company shall furnish to the Trustee any amendment to Exhibit A and/or Exhibit B that modifies one or more lists of Participants and any corresponding amendment to Exhibit C required as a result of such amendment to Exhibit A and/or Exhibit B. IX.2 On or after the date on which the Trust becomes irrevocable, the provisions of this Section 9.2 shall apply. IX.2.1 Not later than 45 calendar days after the end of each calendar year and at such other times as may in the judgment of the Company be appropriate in view of a change in circumstances, the Company and each Participant (or the personal representative of such Participant (including the guardian, executor or administrator of such Participant) -23- (hereafter, the "Successor" of such Participant)) shall agree upon and furnish any amendment to Exhibit C hereto (but only with respect to such Participant's Supplemental Benefits) as shall be required to reflect: (a) any required change in the amounts of Supplemental Benefits as a result of any change in such Participant's compensation (or otherwise) during the prior calendar year, or (b) any amendment, restatement or other change in or to the Plans affecting such Participant, which agreements to amendments to such Exhibit C shall be furnished to the Trustee by the Company or the Participants (or their Successors) and thereafter be deemed to be a part of, and to amend to the extent thereof, this Agreement; provided, however, that in the event of the failure of the Company and any Participant (or Successor) to reach such agreement, the provisions of settlement, release and indemnity from the Company to the Trustee. IX. AMENDMENTS, ETC., TO PLANS AND EXHIBITS IX.1 Prior to the date on which the Trust becomes irrevocable and provided that Exhibit A, Exhibit B or Exhibit C, as the case may be, has previously been furnished to the Trustee, the provisions of this Section 9.1 shall apply. IX.1.1 The Company shall furnish the Trustee with any amendments, restatements, or other changes in the Plans, and the Company shall prescribe or amend, as the case may be, Exhibit B or Exhibit C hereto to reflect any such amendment, restatement, or other change, or any changes in the compensation of the Participants, or otherwise. IX.1.2 At such time as may in the judgment of the Company be appropriate, the Company shall furnish to the Trustee any amendment to Exhibit A and/or Exhibit B that modifies one or more lists of Participants and any corresponding amendment to Exhibit C required as a result of such amendment to Exhibit A and/or Exhibit B. IX.2 On or after the date on which the Trust becomes irrevocable, the provisions of this Section 9.2 shall apply. IX.2.1 Not later than 45 calendar days after the end of each calendar year and at such other times as may in the judgment of the Company be appropriate in view of a change in circumstances, the Company and each Participant (or the personal representative of such Participant (including the guardian, executor or administrator of such Participant) -23- (hereafter, the "Successor" of such Participant)) shall agree upon and furnish any amendment to Exhibit C hereto (but only with respect to such Participant's Supplemental Benefits) as shall be required to reflect: (a) any required change in the amounts of Supplemental Benefits as a result of any change in such Participant's compensation (or otherwise) during the prior calendar year, or (b) any amendment, restatement or other change in or to the Plans affecting such Participant, which agreements to amendments to such Exhibit C shall be furnished to the Trustee by the Company or the Participants (or their Successors) and thereafter be deemed to be a part of, and to amend to the extent thereof, this Agreement; provided, however, that in the event of the failure of the Company and any Participant (or Successor) to reach such agreement, the provisions of Section 9.2.2 shall control. IX.2.2 The Company shall, and any Trust Beneficiary may, promptly furnish the Trustee true and correct copies of any amendment, restatement or successor to any of the Plans. The Company shall, and any Trust Beneficiary may, also furnish the Trustee, upon the Trustee's request, such evidence of changes in compensation of the Participants and such other information as the Trustee shall deem necessary for its determinations under this Section 9.2.2. Upon written notification to the Trustee by the Company or any Participant (or Successor) of the failure of the Company and -24- such Participant (or Successor) to agree as provided in Section 9.2.1, the Trustee shall, to the extent necessary in the sole judgment of the Trustee, (a) recompute the amount payable hereunder as set forth in Exhibit C to any Trust Beneficiary, and (b) notify the Company and the Participant (or Successor) in writing of its computations. Thereafter, this Agreement and all Exhibits hereto shall be amended to the extent of such Trustee determinations without further action; provided, however, that the failure of the Company to furnish any such amendment, restatement, successor, compensation or other information shall in no way diminish the rights of any Trust Beneficiary hereunder or thereunder. IX.2.3 On or after the date on which the Trust becomes irrevocable, any amendment to Exhibit A (and any directly corresponding amendment to Exhibit B) that modifies one or more lists of Participants must be (a) agreed to by the Executives, and (b) in the case of an amendment that adds a new Participant as a Trust Beneficiary, (hereafter, the "Successor" of such Participant)) shall agree upon and furnish any amendment to Exhibit C hereto (but only with respect to such Participant's Supplemental Benefits) as shall be required to reflect: (a) any required change in the amounts of Supplemental Benefits as a result of any change in such Participant's compensation (or otherwise) during the prior calendar year, or (b) any amendment, restatement or other change in or to the Plans affecting such Participant, which agreements to amendments to such Exhibit C shall be furnished to the Trustee by the Company or the Participants (or their Successors) and thereafter be deemed to be a part of, and to amend to the extent thereof, this Agreement; provided, however, that in the event of the failure of the Company and any Participant (or Successor) to reach such agreement, the provisions of Section 9.2.2 shall control. IX.2.2 The Company shall, and any Trust Beneficiary may, promptly furnish the Trustee true and correct copies of any amendment, restatement or successor to any of the Plans. The Company shall, and any Trust Beneficiary may, also furnish the Trustee, upon the Trustee's request, such evidence of changes in compensation of the Participants and such other information as the Trustee shall deem necessary for its determinations under this Section 9.2.2. Upon written notification to the Trustee by the Company or any Participant (or Successor) of the failure of the Company and -24- such Participant (or Successor) to agree as provided in Section 9.2.1, the Trustee shall, to the extent necessary in the sole judgment of the Trustee, (a) recompute the amount payable hereunder as set forth in Exhibit C to any Trust Beneficiary, and (b) notify the Company and the Participant (or Successor) in writing of its computations. Thereafter, this Agreement and all Exhibits hereto shall be amended to the extent of such Trustee determinations without further action; provided, however, that the failure of the Company to furnish any such amendment, restatement, successor, compensation or other information shall in no way diminish the rights of any Trust Beneficiary hereunder or thereunder. IX.2.3 On or after the date on which the Trust becomes irrevocable, any amendment to Exhibit A (and any directly corresponding amendment to Exhibit B) that modifies one or more lists of Participants must be (a) agreed to by the Executives, and (b) in the case of an amendment that adds a new Participant as a Trust Beneficiary, accompanied by the deposit into the Trust by the Company, on or before the effective date on which the new Participant would become a Trust Beneficiary, an amount equal to the greater of (i) an amount certified by the Accounting Firm as sufficient to pay such new Participant's Supplemental Benefits hereunder (with such sufficiency determined on the same basis as that used to determine sufficiency with respect to the Supplemental Benefits as in effect hereunder immediately prior to the addition of such new Participant) or (ii) an -25- amount that is sufficient, taking into account the assets of the Trust prior to such contribution, equal to the sum of (A) the amount certified by the Accounting Firm as sufficient to provide for the payment of all Supplemental Benefits, including such new Participant's Supplemental Benefits, that could become payable pursuant to this Agreement (with such sufficiency determined on the same basis as that used to determine sufficiency with respect to the Supplemental Benefits as in effect hereunder immediately prior to the addition of such new Participant) and (B) any other amount, as determined by the Trustee, that could become payable or reimbursable pursuant to the terms of this Agreement including, without limitation, the fees of the Trustee; provided, however, that no new Participant may be added if all of the Participants added pursuant to this Section 9.2.3, including such new Participant, would constitute a majority of the Participants. IX.3 Notwithstanding the foregoing provisions of this Article IX, any amendment, restatement, successor or other change in a Plan or the addition of a new Plan that would materially increase the responsibilities or liabilities of the Trustee or materially change its duties shall also require the consent of the Trustee, which consent shall not be unreasonably withheld. such Participant (or Successor) to agree as provided in Section 9.2.1, the Trustee shall, to the extent necessary in the sole judgment of the Trustee, (a) recompute the amount payable hereunder as set forth in Exhibit C to any Trust Beneficiary, and (b) notify the Company and the Participant (or Successor) in writing of its computations. Thereafter, this Agreement and all Exhibits hereto shall be amended to the extent of such Trustee determinations without further action; provided, however, that the failure of the Company to furnish any such amendment, restatement, successor, compensation or other information shall in no way diminish the rights of any Trust Beneficiary hereunder or thereunder. IX.2.3 On or after the date on which the Trust becomes irrevocable, any amendment to Exhibit A (and any directly corresponding amendment to Exhibit B) that modifies one or more lists of Participants must be (a) agreed to by the Executives, and (b) in the case of an amendment that adds a new Participant as a Trust Beneficiary, accompanied by the deposit into the Trust by the Company, on or before the effective date on which the new Participant would become a Trust Beneficiary, an amount equal to the greater of (i) an amount certified by the Accounting Firm as sufficient to pay such new Participant's Supplemental Benefits hereunder (with such sufficiency determined on the same basis as that used to determine sufficiency with respect to the Supplemental Benefits as in effect hereunder immediately prior to the addition of such new Participant) or (ii) an -25- amount that is sufficient, taking into account the assets of the Trust prior to such contribution, equal to the sum of (A) the amount certified by the Accounting Firm as sufficient to provide for the payment of all Supplemental Benefits, including such new Participant's Supplemental Benefits, that could become payable pursuant to this Agreement (with such sufficiency determined on the same basis as that used to determine sufficiency with respect to the Supplemental Benefits as in effect hereunder immediately prior to the addition of such new Participant) and (B) any other amount, as determined by the Trustee, that could become payable or reimbursable pursuant to the terms of this Agreement including, without limitation, the fees of the Trustee; provided, however, that no new Participant may be added if all of the Participants added pursuant to this Section 9.2.3, including such new Participant, would constitute a majority of the Participants. IX.3 Notwithstanding the foregoing provisions of this Article IX, any amendment, restatement, successor or other change in a Plan or the addition of a new Plan that would materially increase the responsibilities or liabilities of the Trustee or materially change its duties shall also require the consent of the Trustee, which consent shall not be unreasonably withheld. X. REPLACEMENT OF TRUSTEE X.1 The Trustee may resign and be discharged from its duties hereunder after providing not less than 90 days' notice in writing to the Company. On or after the date on which the Trust -26- becomes irrevocable, the Trustee shall also provide notice of its resignation to all of the Executives. Prior to the date on which the Trust becomes irrevocable, the Trustee may be removed at any time upon notice in writing by the Company. On or after such date, such removal shall also require the agreement of the Executives. Prior to the date on which the Trust becomes irrevocable, a replacement or successor trustee shall be appointed by the Company. On or after such date, such appointment shall also require the agreement of the Executives. No such removal or resignation shall become effective until the effectiveness of the acceptance of the trust by a successor trustee designated in accordance with this Article X. If the Trustee should resign, and within 60 days of the notice of such resignation the Company and, if required, the Executives shall not have notified the Trustee of an agreement as to a replacement trustee, the Trustee shall petition a court of competent jurisdiction to appoint a successor trustee. Upon the acceptance of the trust by a successor trustee, the Trustee shall release all of the moneys and other property in the Trust to its successor, who shall thereafter for all purposes of this Agreement be considered to be the "Trustee." In the event of its removal or resignation, the Trustee shall duly file with the Company and, after the Trust becomes irrevocable, all of the Executives, a written statement or statements of accounts and proceedings as provided in Section 7.1 for the period since the last previous annual accounting of the Trust, and if written objection to such account is not filed as provided in Section amount that is sufficient, taking into account the assets of the Trust prior to such contribution, equal to the sum of (A) the amount certified by the Accounting Firm as sufficient to provide for the payment of all Supplemental Benefits, including such new Participant's Supplemental Benefits, that could become payable pursuant to this Agreement (with such sufficiency determined on the same basis as that used to determine sufficiency with respect to the Supplemental Benefits as in effect hereunder immediately prior to the addition of such new Participant) and (B) any other amount, as determined by the Trustee, that could become payable or reimbursable pursuant to the terms of this Agreement including, without limitation, the fees of the Trustee; provided, however, that no new Participant may be added if all of the Participants added pursuant to this Section 9.2.3, including such new Participant, would constitute a majority of the Participants. IX.3 Notwithstanding the foregoing provisions of this Article IX, any amendment, restatement, successor or other change in a Plan or the addition of a new Plan that would materially increase the responsibilities or liabilities of the Trustee or materially change its duties shall also require the consent of the Trustee, which consent shall not be unreasonably withheld. X. REPLACEMENT OF TRUSTEE X.1 The Trustee may resign and be discharged from its duties hereunder after providing not less than 90 days' notice in writing to the Company. On or after the date on which the Trust -26- becomes irrevocable, the Trustee shall also provide notice of its resignation to all of the Executives. Prior to the date on which the Trust becomes irrevocable, the Trustee may be removed at any time upon notice in writing by the Company. On or after such date, such removal shall also require the agreement of the Executives. Prior to the date on which the Trust becomes irrevocable, a replacement or successor trustee shall be appointed by the Company. On or after such date, such appointment shall also require the agreement of the Executives. No such removal or resignation shall become effective until the effectiveness of the acceptance of the trust by a successor trustee designated in accordance with this Article X. If the Trustee should resign, and within 60 days of the notice of such resignation the Company and, if required, the Executives shall not have notified the Trustee of an agreement as to a replacement trustee, the Trustee shall petition a court of competent jurisdiction to appoint a successor trustee. Upon the acceptance of the trust by a successor trustee, the Trustee shall release all of the moneys and other property in the Trust to its successor, who shall thereafter for all purposes of this Agreement be considered to be the "Trustee." In the event of its removal or resignation, the Trustee shall duly file with the Company and, after the Trust becomes irrevocable, all of the Executives, a written statement or statements of accounts and proceedings as provided in Section 7.1 for the period since the last previous annual accounting of the Trust, and if written objection to such account is not filed as provided in Section -27- 7.1, the Trustee shall to the maximum extent permitted by applicable law be forever released and discharged from all liability and accountability with respect to the propriety of its acts and transactions shown in such account. XI. AMENDMENT OR TERMINATION OF AGREEMENT XI.1 This Agreement may be amended at any time and to any extent by a written instrument executed by the Trustee and the Company and, after the Trust has become irrevocable, approved by the Executives; provided, however, that no amendment shall have the effect of (a) making the Trust revocable after it has become irrevocable in accordance with Section 1.2 or (b) altering Section 11.2. Notwithstanding the previous sentence, (i) amendments contemplated by Article IX shall be made as therein provided, and (ii) the approval by the Executives shall not be required for any amendment necessary in order to obtain a favorable private letter ruling (if such ruling is sought) from the Internal Revenue Service regarding the effect of the Trust on the taxation of the Company or the Trust Beneficiaries. XI.2 The Trust shall terminate (a) prior to the date on which the Trust has become irrevocable, upon the written becomes irrevocable, the Trustee shall also provide notice of its resignation to all of the Executives. Prior to the date on which the Trust becomes irrevocable, the Trustee may be removed at any time upon notice in writing by the Company. On or after such date, such removal shall also require the agreement of the Executives. Prior to the date on which the Trust becomes irrevocable, a replacement or successor trustee shall be appointed by the Company. On or after such date, such appointment shall also require the agreement of the Executives. No such removal or resignation shall become effective until the effectiveness of the acceptance of the trust by a successor trustee designated in accordance with this Article X. If the Trustee should resign, and within 60 days of the notice of such resignation the Company and, if required, the Executives shall not have notified the Trustee of an agreement as to a replacement trustee, the Trustee shall petition a court of competent jurisdiction to appoint a successor trustee. Upon the acceptance of the trust by a successor trustee, the Trustee shall release all of the moneys and other property in the Trust to its successor, who shall thereafter for all purposes of this Agreement be considered to be the "Trustee." In the event of its removal or resignation, the Trustee shall duly file with the Company and, after the Trust becomes irrevocable, all of the Executives, a written statement or statements of accounts and proceedings as provided in Section 7.1 for the period since the last previous annual accounting of the Trust, and if written objection to such account is not filed as provided in Section -27- 7.1, the Trustee shall to the maximum extent permitted by applicable law be forever released and discharged from all liability and accountability with respect to the propriety of its acts and transactions shown in such account. XI. AMENDMENT OR TERMINATION OF AGREEMENT XI.1 This Agreement may be amended at any time and to any extent by a written instrument executed by the Trustee and the Company and, after the Trust has become irrevocable, approved by the Executives; provided, however, that no amendment shall have the effect of (a) making the Trust revocable after it has become irrevocable in accordance with Section 1.2 or (b) altering Section 11.2. Notwithstanding the previous sentence, (i) amendments contemplated by Article IX shall be made as therein provided, and (ii) the approval by the Executives shall not be required for any amendment necessary in order to obtain a favorable private letter ruling (if such ruling is sought) from the Internal Revenue Service regarding the effect of the Trust on the taxation of the Company or the Trust Beneficiaries. XI.2 The Trust shall terminate (a) prior to the date on which the Trust has become irrevocable, upon the written request of the Company, and (b) on or after such date, upon the earliest to occur of (i) a determination by the Trustee in its sole judgment made on or after the third anniversary of the date on which the Trust becomes irrevocable that no Trust Beneficiary is or will be entitled to any payment or further payment of Supplemental Benefits arising out of a Change in Control or Potential Change in Control occurring prior to such -28- determination; (ii) such time as the Trust no longer contains any assets, or contains assets that, in the sole judgment of the Trustee, are insubstantial in relation to the actual and potential liabilities of the Trustee to pay Supplemental Benefits under the terms of this Agreement and any other amounts to be paid from the assets of the Trust, including, without limitation, the fees and expenses of the Trustee, the Accounting Firm, and counsel; or (iii) such time as the Trustee shall have received consents from all of the Executives to the termination of this Agreement. Notwithstanding the previous sentence (other than clause (ii) thereof), if payments under a Plan with respect to a Trust Beneficiary are the subject of litigation or arbitration, the Trust shall not terminate and the funds held in the Trust with respect to such Trust Beneficiary shall continue to be held by the Trustee until the final resolution of such litigation or arbitration. The Trustee may assume that no Plan is the subject of such litigation or arbitration unless the Trustee receives written notice from a Trust Beneficiary or the Company with respect to such litigation or arbitration. The Trustee may rely upon written notice from a Trust Beneficiary as to the final resolution of such litigation or arbitration. XI.3 Upon a termination of the Trust as provided in Section 11.2 hereof, any assets remaining in the Trust, less all payments, expenses, taxes and other charges under this Agreement as of such date of termination, shall be 7.1, the Trustee shall to the maximum extent permitted by applicable law be forever released and discharged from all liability and accountability with respect to the propriety of its acts and transactions shown in such account. XI. AMENDMENT OR TERMINATION OF AGREEMENT XI.1 This Agreement may be amended at any time and to any extent by a written instrument executed by the Trustee and the Company and, after the Trust has become irrevocable, approved by the Executives; provided, however, that no amendment shall have the effect of (a) making the Trust revocable after it has become irrevocable in accordance with Section 1.2 or (b) altering Section 11.2. Notwithstanding the previous sentence, (i) amendments contemplated by Article IX shall be made as therein provided, and (ii) the approval by the Executives shall not be required for any amendment necessary in order to obtain a favorable private letter ruling (if such ruling is sought) from the Internal Revenue Service regarding the effect of the Trust on the taxation of the Company or the Trust Beneficiaries. XI.2 The Trust shall terminate (a) prior to the date on which the Trust has become irrevocable, upon the written request of the Company, and (b) on or after such date, upon the earliest to occur of (i) a determination by the Trustee in its sole judgment made on or after the third anniversary of the date on which the Trust becomes irrevocable that no Trust Beneficiary is or will be entitled to any payment or further payment of Supplemental Benefits arising out of a Change in Control or Potential Change in Control occurring prior to such -28- determination; (ii) such time as the Trust no longer contains any assets, or contains assets that, in the sole judgment of the Trustee, are insubstantial in relation to the actual and potential liabilities of the Trustee to pay Supplemental Benefits under the terms of this Agreement and any other amounts to be paid from the assets of the Trust, including, without limitation, the fees and expenses of the Trustee, the Accounting Firm, and counsel; or (iii) such time as the Trustee shall have received consents from all of the Executives to the termination of this Agreement. Notwithstanding the previous sentence (other than clause (ii) thereof), if payments under a Plan with respect to a Trust Beneficiary are the subject of litigation or arbitration, the Trust shall not terminate and the funds held in the Trust with respect to such Trust Beneficiary shall continue to be held by the Trustee until the final resolution of such litigation or arbitration. The Trustee may assume that no Plan is the subject of such litigation or arbitration unless the Trustee receives written notice from a Trust Beneficiary or the Company with respect to such litigation or arbitration. The Trustee may rely upon written notice from a Trust Beneficiary as to the final resolution of such litigation or arbitration. XI.3 Upon a termination of the Trust as provided in Section 11.2 hereof, any assets remaining in the Trust, less all payments, expenses, taxes and other charges under this Agreement as of such date of termination, shall be returned to the Company. XII. SPECIAL DISTRIBUTIONS XII.1 It is intended that (a) the creation of, transfer of -29- assets to, and irrevocability of, the Trust will not cause any of the Plans to be other than "unfunded" for purposes of title I of ERISA; (b) transfers of assets to the Trust or the Trust becoming irrevocable will not be transfers of property for purposes of section 83 of the Code, or any successor provision thereto, nor will such transfers or irrevocability cause a currently taxable benefit to be realized by a Trust Beneficiary pursuant to the "economic benefit" doctrine; and (c) pursuant to section 451 of the Code, or any successor provision thereto, amounts will be includible as compensation in the gross income of a Trust Beneficiary in the taxable year or years in which such amounts are actually distributed or made available to such Trust Beneficiary by the Trustee. XII.2 Notwithstanding anything to the contrary contained in any Plan, if the Trustee obtains an opinion of tax counsel selected by the Trustee to the effect that based upon any of the following occurring after the date of this determination; (ii) such time as the Trust no longer contains any assets, or contains assets that, in the sole judgment of the Trustee, are insubstantial in relation to the actual and potential liabilities of the Trustee to pay Supplemental Benefits under the terms of this Agreement and any other amounts to be paid from the assets of the Trust, including, without limitation, the fees and expenses of the Trustee, the Accounting Firm, and counsel; or (iii) such time as the Trustee shall have received consents from all of the Executives to the termination of this Agreement. Notwithstanding the previous sentence (other than clause (ii) thereof), if payments under a Plan with respect to a Trust Beneficiary are the subject of litigation or arbitration, the Trust shall not terminate and the funds held in the Trust with respect to such Trust Beneficiary shall continue to be held by the Trustee until the final resolution of such litigation or arbitration. The Trustee may assume that no Plan is the subject of such litigation or arbitration unless the Trustee receives written notice from a Trust Beneficiary or the Company with respect to such litigation or arbitration. The Trustee may rely upon written notice from a Trust Beneficiary as to the final resolution of such litigation or arbitration. XI.3 Upon a termination of the Trust as provided in Section 11.2 hereof, any assets remaining in the Trust, less all payments, expenses, taxes and other charges under this Agreement as of such date of termination, shall be returned to the Company. XII. SPECIAL DISTRIBUTIONS XII.1 It is intended that (a) the creation of, transfer of -29- assets to, and irrevocability of, the Trust will not cause any of the Plans to be other than "unfunded" for purposes of title I of ERISA; (b) transfers of assets to the Trust or the Trust becoming irrevocable will not be transfers of property for purposes of section 83 of the Code, or any successor provision thereto, nor will such transfers or irrevocability cause a currently taxable benefit to be realized by a Trust Beneficiary pursuant to the "economic benefit" doctrine; and (c) pursuant to section 451 of the Code, or any successor provision thereto, amounts will be includible as compensation in the gross income of a Trust Beneficiary in the taxable year or years in which such amounts are actually distributed or made available to such Trust Beneficiary by the Trustee. XII.2 Notwithstanding anything to the contrary contained in any Plan, if the Trustee obtains an opinion of tax counsel selected by the Trustee to the effect that based upon any of the following occurring after the date of this Agreement: (a) a change in the federal tax or revenue laws, (b) a decision in a controlling case, (c) a published ruling or similar announcement issued by the Internal Revenue Service, (d) a regulation issued by the Secretary of the Treasury, (e) a decision by a court of competent jurisdiction involving a Trust Beneficiary, or (f) a closing agreement made under section 7121 of the Code, or any successor provision thereto, that is approved by the Internal Revenue Service and involves a Trust Beneficiary, it is more likely than not that an amount is includible in the gross income of -30- a Trust Beneficiary in a taxable year that is prior to the taxable year or years in which such amount would, but for this Section 12.2, otherwise actually be distributed or made available to such Trust Beneficiary by the Trustee, then the Trustee shall distribute to each affected Trust Beneficiary an amount equal to the amount determined to be includible in gross income in such prior taxable year. The Trustee shall seek such an opinion of tax counsel if and only if requested to do so by the Executives. XII.3 Notwithstanding anything to the contrary contained in any Plan, if a Trust Beneficiary provides evidence satisfactory to the Trustee demonstrating that, as a result of an assertion by the Internal Revenue Service, a final nonappealable binding determination has been made with respect to a taxable year of such Trust Beneficiary that an amount is includible in the gross income of such Trust Beneficiary in a taxable year that is prior to the taxable year in which such amount would, but for this Section 12.3, otherwise actually be distributed or made available to such Trust Beneficiary by the Trustee, then the Trustee shall distribute to such Trust Beneficiary an amount equal assets to, and irrevocability of, the Trust will not cause any of the Plans to be other than "unfunded" for purposes of title I of ERISA; (b) transfers of assets to the Trust or the Trust becoming irrevocable will not be transfers of property for purposes of section 83 of the Code, or any successor provision thereto, nor will such transfers or irrevocability cause a currently taxable benefit to be realized by a Trust Beneficiary pursuant to the "economic benefit" doctrine; and (c) pursuant to section 451 of the Code, or any successor provision thereto, amounts will be includible as compensation in the gross income of a Trust Beneficiary in the taxable year or years in which such amounts are actually distributed or made available to such Trust Beneficiary by the Trustee. XII.2 Notwithstanding anything to the contrary contained in any Plan, if the Trustee obtains an opinion of tax counsel selected by the Trustee to the effect that based upon any of the following occurring after the date of this Agreement: (a) a change in the federal tax or revenue laws, (b) a decision in a controlling case, (c) a published ruling or similar announcement issued by the Internal Revenue Service, (d) a regulation issued by the Secretary of the Treasury, (e) a decision by a court of competent jurisdiction involving a Trust Beneficiary, or (f) a closing agreement made under section 7121 of the Code, or any successor provision thereto, that is approved by the Internal Revenue Service and involves a Trust Beneficiary, it is more likely than not that an amount is includible in the gross income of -30- a Trust Beneficiary in a taxable year that is prior to the taxable year or years in which such amount would, but for this Section 12.2, otherwise actually be distributed or made available to such Trust Beneficiary by the Trustee, then the Trustee shall distribute to each affected Trust Beneficiary an amount equal to the amount determined to be includible in gross income in such prior taxable year. The Trustee shall seek such an opinion of tax counsel if and only if requested to do so by the Executives. XII.3 Notwithstanding anything to the contrary contained in any Plan, if a Trust Beneficiary provides evidence satisfactory to the Trustee demonstrating that, as a result of an assertion by the Internal Revenue Service, a final nonappealable binding determination has been made with respect to a taxable year of such Trust Beneficiary that an amount is includible in the gross income of such Trust Beneficiary in a taxable year that is prior to the taxable year in which such amount would, but for this Section 12.3, otherwise actually be distributed or made available to such Trust Beneficiary by the Trustee, then the Trustee shall distribute to such Trust Beneficiary an amount equal to such amount determined by the Internal Revenue Service to be includible in gross income in such prior taxable year. XIII. GENERAL PROVISIONS XIII.1 The Company shall, at any time and from time to time, upon the reasonable request of the Trustee, provide information, execute and deliver such further instruments and do such further acts as may be necessary or proper to effectuate the purposes of -31- this Trust. XIII.2 Each Exhibit referred to in this Agreement shall become a part hereof and is expressly incorporated herein by reference. XIII.3 This Agreement sets forth the entire understanding of the parties with respect to the subject matter hereof and supersedes any and all prior agreements, arrangements and understandings relating thereto. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and legal representatives. XIII.4 This Agreement shall be governed by and construed in accordance with the laws of the State of Michigan, other than and without reference to any provisions of such laws regarding choice of laws or conflict of laws. a Trust Beneficiary in a taxable year that is prior to the taxable year or years in which such amount would, but for this Section 12.2, otherwise actually be distributed or made available to such Trust Beneficiary by the Trustee, then the Trustee shall distribute to each affected Trust Beneficiary an amount equal to the amount determined to be includible in gross income in such prior taxable year. The Trustee shall seek such an opinion of tax counsel if and only if requested to do so by the Executives. XII.3 Notwithstanding anything to the contrary contained in any Plan, if a Trust Beneficiary provides evidence satisfactory to the Trustee demonstrating that, as a result of an assertion by the Internal Revenue Service, a final nonappealable binding determination has been made with respect to a taxable year of such Trust Beneficiary that an amount is includible in the gross income of such Trust Beneficiary in a taxable year that is prior to the taxable year in which such amount would, but for this Section 12.3, otherwise actually be distributed or made available to such Trust Beneficiary by the Trustee, then the Trustee shall distribute to such Trust Beneficiary an amount equal to such amount determined by the Internal Revenue Service to be includible in gross income in such prior taxable year. XIII. GENERAL PROVISIONS XIII.1 The Company shall, at any time and from time to time, upon the reasonable request of the Trustee, provide information, execute and deliver such further instruments and do such further acts as may be necessary or proper to effectuate the purposes of -31- this Trust. XIII.2 Each Exhibit referred to in this Agreement shall become a part hereof and is expressly incorporated herein by reference. XIII.3 This Agreement sets forth the entire understanding of the parties with respect to the subject matter hereof and supersedes any and all prior agreements, arrangements and understandings relating thereto. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and legal representatives. XIII.4 This Agreement shall be governed by and construed in accordance with the laws of the State of Michigan, other than and without reference to any provisions of such laws regarding choice of laws or conflict of laws. XIII.5 In the event that any provision of this Agreement or the application thereof to any person or circumstances shall be determined by a court of competent jurisdiction to be invalid or unenforceable to any extent, the remainder of this Agreement, or the application of such provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each provision of this Agreement shall be valid and enforced to the maximum extent permitted by law. XIII.6 (a) The preamble to this Agreement, including the definitions provided therein, shall be considered a part of the agreement of the parties as if set forth in a section of this Agreement. -32- (b) The headings contained in this Agreement are solely for the purpose of reference, are not part of the agreement of the parties and shall not in any way affect the meaning or interpretation of this Agreement. XIII.7 The right of any Trust Beneficiary to any benefit or to any payment hereunder may not be anticipated, assigned (either at law or in equity), alienated or subject to attachment, garnishment, levy, execution or other legal or equitable process except as required by law. Any attempt by any Trust Beneficiary to anticipate, alienate, assign, sell, transfer, pledge, encumber or charge the same shall be void. The Trust assets shall not in any manner be subject to the debts, contracts, liabilities, engagement or torts of any Trust Beneficiary and payments hereunder shall not be considered an asset of the Trust Beneficiary in the event of the insolvency or bankruptcy of this Trust. XIII.2 Each Exhibit referred to in this Agreement shall become a part hereof and is expressly incorporated herein by reference. XIII.3 This Agreement sets forth the entire understanding of the parties with respect to the subject matter hereof and supersedes any and all prior agreements, arrangements and understandings relating thereto. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and legal representatives. XIII.4 This Agreement shall be governed by and construed in accordance with the laws of the State of Michigan, other than and without reference to any provisions of such laws regarding choice of laws or conflict of laws. XIII.5 In the event that any provision of this Agreement or the application thereof to any person or circumstances shall be determined by a court of competent jurisdiction to be invalid or unenforceable to any extent, the remainder of this Agreement, or the application of such provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each provision of this Agreement shall be valid and enforced to the maximum extent permitted by law. XIII.6 (a) The preamble to this Agreement, including the definitions provided therein, shall be considered a part of the agreement of the parties as if set forth in a section of this Agreement. -32- (b) The headings contained in this Agreement are solely for the purpose of reference, are not part of the agreement of the parties and shall not in any way affect the meaning or interpretation of this Agreement. XIII.7 The right of any Trust Beneficiary to any benefit or to any payment hereunder may not be anticipated, assigned (either at law or in equity), alienated or subject to attachment, garnishment, levy, execution or other legal or equitable process except as required by law. Any attempt by any Trust Beneficiary to anticipate, alienate, assign, sell, transfer, pledge, encumber or charge the same shall be void. The Trust assets shall not in any manner be subject to the debts, contracts, liabilities, engagement or torts of any Trust Beneficiary and payments hereunder shall not be considered an asset of the Trust Beneficiary in the event of the insolvency or bankruptcy of such Trust Beneficiary. XIII.8 Any dispute between the Participants and the Company or the Trustee as to the interpretation or application of the provisions of this Agreement and amounts payable hereunder may, at the election of any party to such dispute (or, if more than one Participant is such a party, at the election of two-thirds of such Participants), be determined by binding arbitration within the Detroit area in accordance with the rules of the American Arbitration Association then in effect. Judgment may be entered on the arbitrator's award in any court of competent jurisdiction. All fees and expenses of the Participants and the Trustee of such arbitration shall be paid by the Trustee and considered an -33- expense of the Trust under Section 8.7. XIII.9 Each Participant (and, where applicable, each Successor) is an intended beneficiary under this Trust, and as an intended beneficiary shall be entitled to enforce all terms and provisions hereof with the same force and effect as if such person had been a party hereto. XIII.10 The Trustee shall be permitted to withhold from any payment due to a Participant hereunder the amount required by law to be so withheld under federal, state and local withholding requirements or otherwise, and shall pay over to the appropriate government authority the amounts so withheld. The Trustee may rely on reasonable instructions from the Company as to any required withholding and shall be fully protected under Section 8.7 in relying on such instructions. (b) The headings contained in this Agreement are solely for the purpose of reference, are not part of the agreement of the parties and shall not in any way affect the meaning or interpretation of this Agreement. XIII.7 The right of any Trust Beneficiary to any benefit or to any payment hereunder may not be anticipated, assigned (either at law or in equity), alienated or subject to attachment, garnishment, levy, execution or other legal or equitable process except as required by law. Any attempt by any Trust Beneficiary to anticipate, alienate, assign, sell, transfer, pledge, encumber or charge the same shall be void. The Trust assets shall not in any manner be subject to the debts, contracts, liabilities, engagement or torts of any Trust Beneficiary and payments hereunder shall not be considered an asset of the Trust Beneficiary in the event of the insolvency or bankruptcy of such Trust Beneficiary. XIII.8 Any dispute between the Participants and the Company or the Trustee as to the interpretation or application of the provisions of this Agreement and amounts payable hereunder may, at the election of any party to such dispute (or, if more than one Participant is such a party, at the election of two-thirds of such Participants), be determined by binding arbitration within the Detroit area in accordance with the rules of the American Arbitration Association then in effect. Judgment may be entered on the arbitrator's award in any court of competent jurisdiction. All fees and expenses of the Participants and the Trustee of such arbitration shall be paid by the Trustee and considered an -33- expense of the Trust under Section 8.7. XIII.9 Each Participant (and, where applicable, each Successor) is an intended beneficiary under this Trust, and as an intended beneficiary shall be entitled to enforce all terms and provisions hereof with the same force and effect as if such person had been a party hereto. XIII.10 The Trustee shall be permitted to withhold from any payment due to a Participant hereunder the amount required by law to be so withheld under federal, state and local withholding requirements or otherwise, and shall pay over to the appropriate government authority the amounts so withheld. The Trustee may rely on reasonable instructions from the Company as to any required withholding and shall be fully protected under Section 8.7 in relying on such instructions. XIII.11 Notwithstanding any other provision hereof, the parties' respective rights and obligations under Section 13.9 shall survive any termination or expiration of this Agreement. XIV. NOTICES XIV.1 For all purposes of this Agreement, any communication, including without limitation, any notice, consent, report, demand or waiver required or permitted to be given hereunder shall be in writing and, unless otherwise provided in this Agreement, shall be deemed to have been duly given when hand delivered or dispatched by telegram or electronic facsimile transfer (confirmed in writing by mail simultaneously dispatched), or two business days after having been mailed by United States registered or certified mail, return receipt -34- requested, postage prepaid, or one business day after having been dispatched by a nationally recognized overnight courier service to the appropriate party at the addressed specified below: If to the Company, to: DTE Energy Company 2000 Second Avenue Detroit, Michigan 48226 Attn: Treasurer Wachovia Bank, N.A. 100 Main Street Winston-Salem, North Carolina 27102 Attn: Executive Services If to the Trustee, to: expense of the Trust under Section 8.7. XIII.9 Each Participant (and, where applicable, each Successor) is an intended beneficiary under this Trust, and as an intended beneficiary shall be entitled to enforce all terms and provisions hereof with the same force and effect as if such person had been a party hereto. XIII.10 The Trustee shall be permitted to withhold from any payment due to a Participant hereunder the amount required by law to be so withheld under federal, state and local withholding requirements or otherwise, and shall pay over to the appropriate government authority the amounts so withheld. The Trustee may rely on reasonable instructions from the Company as to any required withholding and shall be fully protected under Section 8.7 in relying on such instructions. XIII.11 Notwithstanding any other provision hereof, the parties' respective rights and obligations under Section 13.9 shall survive any termination or expiration of this Agreement. XIV. NOTICES XIV.1 For all purposes of this Agreement, any communication, including without limitation, any notice, consent, report, demand or waiver required or permitted to be given hereunder shall be in writing and, unless otherwise provided in this Agreement, shall be deemed to have been duly given when hand delivered or dispatched by telegram or electronic facsimile transfer (confirmed in writing by mail simultaneously dispatched), or two business days after having been mailed by United States registered or certified mail, return receipt -34- requested, postage prepaid, or one business day after having been dispatched by a nationally recognized overnight courier service to the appropriate party at the addressed specified below: If to the Company, to: DTE Energy Company 2000 Second Avenue Detroit, Michigan 48226 Attn: Treasurer Wachovia Bank, N.A. 100 Main Street Winston-Salem, North Carolina 27102 Attn: Executive Services the address of such Participant as listed next to such Participant's name on Exhibit A hereto, If to the Trustee, to: If to a Participant, to: provided, however, that if any party or such party's successors shall have designated a different address by notice to the other parties, then to the last address so designated. IN WITNESS WHEREOF, the Company and the Trustee caused this Agreement to be executed on its behalf as of the date first above written. Attested DTE ENERGY COMPANY By: -----------------------------Its: Assistant Corporate Secretary By: --------------------------Its: Vice President and Treasurer Attested WACHOVIA BANK, N.A. By: By: requested, postage prepaid, or one business day after having been dispatched by a nationally recognized overnight courier service to the appropriate party at the addressed specified below: If to the Company, to: DTE Energy Company 2000 Second Avenue Detroit, Michigan 48226 Attn: Treasurer Wachovia Bank, N.A. 100 Main Street Winston-Salem, North Carolina 27102 Attn: Executive Services the address of such Participant as listed next to such Participant's name on Exhibit A hereto, If to the Trustee, to: If to a Participant, to: provided, however, that if any party or such party's successors shall have designated a different address by notice to the other parties, then to the last address so designated. IN WITNESS WHEREOF, the Company and the Trustee caused this Agreement to be executed on its behalf as of the date first above written. Attested DTE ENERGY COMPANY By: -----------------------------Its: Assistant Corporate Secretary By: --------------------------Its: Vice President and Treasurer Attested WACHOVIA BANK, N.A. By: -----------------------------Its: -------------------------- By: --------------------------Its: ----------------------- -35- Exhibit A Employee Address Soc. Sec. No. Exhibit B [List of Change-in-Control Severance Agreements to be covered by the Trust.] Exhibit C Exhibit D Assumptions The following assumptions are applicable to calculations under Articles IV and VII and Section 9.2.3 of the Exhibit A Employee Address Soc. Sec. No. Exhibit B [List of Change-in-Control Severance Agreements to be covered by the Trust.] Exhibit C Exhibit D Assumptions The following assumptions are applicable to calculations under Articles IV and VII and Section 9.2.3 of the Agreement, and may be deleted, revised or otherwise amended only in accordance with Article IV of the Agreement. 1. Investment return is 3% per year. 2. Salaries increase at 4.5% per year. 3. A target bonus equal to: % Base Salary ------------40% 35% 30% 30% 25% 50% Position -------Chairman President Executive Vice President Senior Vice President Vice President Other 4. The Accounting Firm shall also use such other assumptions as are recommended by the Accounting Firm and approved by the Company and, if the Trust is irrevocable, by the Executives. EXHIBIT 11-10 DTE ENERGY COMPANY BASIC AND DILUTED EARNINGS PER SHARE OF COMMON STOCK Year Ended December 31 ------------------------------------1997 ---1996 ---1995 ---- (Thousands, except per share amounts) BASIC: Net Income................................. $417,333 Weighted average number of common shares outstanding (a)................... 145,101 Earnings per share of Common Stock $309,296 145,120 $405,914 144,940 Exhibit B [List of Change-in-Control Severance Agreements to be covered by the Trust.] Exhibit C Exhibit D Assumptions The following assumptions are applicable to calculations under Articles IV and VII and Section 9.2.3 of the Agreement, and may be deleted, revised or otherwise amended only in accordance with Article IV of the Agreement. 1. Investment return is 3% per year. 2. Salaries increase at 4.5% per year. 3. A target bonus equal to: % Base Salary ------------40% 35% 30% 30% 25% 50% Position -------Chairman President Executive Vice President Senior Vice President Vice President Other 4. The Accounting Firm shall also use such other assumptions as are recommended by the Accounting Firm and approved by the Company and, if the Trust is irrevocable, by the Executives. EXHIBIT 11-10 DTE ENERGY COMPANY BASIC AND DILUTED EARNINGS PER SHARE OF COMMON STOCK Year Ended December 31 ------------------------------------1997 ---1996 ---1995 ---- (Thousands, except per share amounts) BASIC: Net Income................................. $417,333 Weighted average number of common shares outstanding (a)................... 145,101 Earnings per share of Common Stock based on weighted average number of shares outstanding.................... $ 2.88 DILUTED: Net Income................................. $417,333 Convertible Preferred Stock dividends...... - $309,296 145,120 $405,914 144,940 $ 2.13 $ 2.80 $309,296 - $405,914 205 Exhibit C Exhibit D Assumptions The following assumptions are applicable to calculations under Articles IV and VII and Section 9.2.3 of the Agreement, and may be deleted, revised or otherwise amended only in accordance with Article IV of the Agreement. 1. Investment return is 3% per year. 2. Salaries increase at 4.5% per year. 3. A target bonus equal to: % Base Salary ------------40% 35% 30% 30% 25% 50% Position -------Chairman President Executive Vice President Senior Vice President Vice President Other 4. The Accounting Firm shall also use such other assumptions as are recommended by the Accounting Firm and approved by the Company and, if the Trust is irrevocable, by the Executives. EXHIBIT 11-10 DTE ENERGY COMPANY BASIC AND DILUTED EARNINGS PER SHARE OF COMMON STOCK Year Ended December 31 ------------------------------------1997 ---1996 ---1995 ---- (Thousands, except per share amounts) BASIC: Net Income................................. $417,333 Weighted average number of common shares outstanding (a)................... 145,101 Earnings per share of Common Stock based on weighted average number of shares outstanding.................... $ 2.88 DILUTED: Net Income................................. $417,333 Convertible Preferred Stock dividends...... -------$417,333 ======== Weighted average number of common shares outstanding (a)................... Conversion of convertible Preferred Stock Incremental shares from assumed $309,296 145,120 $405,914 144,940 $ 2.13 $ 2.80 $309,296 -------$309,296 ======== $405,914 205 -------$406,119 ======== 145,101 - 145,120 - 144,940 237 Exhibit D Assumptions The following assumptions are applicable to calculations under Articles IV and VII and Section 9.2.3 of the Agreement, and may be deleted, revised or otherwise amended only in accordance with Article IV of the Agreement. 1. Investment return is 3% per year. 2. Salaries increase at 4.5% per year. 3. A target bonus equal to: % Base Salary ------------40% 35% 30% 30% 25% 50% Position -------Chairman President Executive Vice President Senior Vice President Vice President Other 4. The Accounting Firm shall also use such other assumptions as are recommended by the Accounting Firm and approved by the Company and, if the Trust is irrevocable, by the Executives. EXHIBIT 11-10 DTE ENERGY COMPANY BASIC AND DILUTED EARNINGS PER SHARE OF COMMON STOCK Year Ended December 31 ------------------------------------1997 ---1996 ---1995 ---- (Thousands, except per share amounts) BASIC: Net Income................................. $417,333 Weighted average number of common shares outstanding (a)................... 145,101 Earnings per share of Common Stock based on weighted average number of shares outstanding.................... $ 2.88 DILUTED: Net Income................................. $417,333 Convertible Preferred Stock dividends...... -------$417,333 ======== Weighted average number of common shares outstanding (a)................... Conversion of convertible Preferred Stock Incremental shares from assumed conversion of options.................... $309,296 145,120 $405,914 144,940 $ 2.13 $ 2.80 $309,296 -------$309,296 ======== $405,914 205 -------$406,119 ======== 145,101 12 -------145,113 145,120 -------145,120 144,940 237 -------145,177 EXHIBIT 11-10 DTE ENERGY COMPANY BASIC AND DILUTED EARNINGS PER SHARE OF COMMON STOCK Year Ended December 31 ------------------------------------1997 ---1996 ---1995 ---- (Thousands, except per share amounts) BASIC: Net Income................................. $417,333 Weighted average number of common shares outstanding (a)................... 145,101 Earnings per share of Common Stock based on weighted average number of shares outstanding.................... $ 2.88 DILUTED: Net Income................................. $417,333 Convertible Preferred Stock dividends...... -------$417,333 ======== Weighted average number of common shares outstanding (a)................... Conversion of convertible Preferred Stock Incremental shares from assumed conversion of options.................... $309,296 145,120 $405,914 144,940 $ 2.13 $ 2.80 $309,296 -------$309,296 ======== $405,914 205 -------$406,119 ======== 145,101 12 -------145,113 ======== 145,120 -------145,120 ======== 144,940 237 -------145,177 ======== Earnings per share of Common Stock assuming conversion of outstanding convertible Preferred Stock and options.. $ 2.88 $ 2.13 $ 2.80 (a) Based on a daily average. EXHIBIT 12-8 DTE ENERGY COMPANY COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES Year Ended December 31 ----------------------------------------------1997 ---1996 ---(Millions, except for ratio) Net income............................................. $ 429 --------------$ 325 ---------------$ -------1 - Taxes based on income: Current income taxes................................ Deferred taxes - net................................ Investment tax credit adjustments - net............. 267 5 (15) 219 17 (15) EXHIBIT 12-8 DTE ENERGY COMPANY COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES Year Ended December 31 ----------------------------------------------1997 ---1996 ---(Millions, except for ratio) Net income............................................. $ 429 --------------$ 325 ---------------$ -------1 - Taxes based on income: Current income taxes................................ Deferred taxes - net................................ Investment tax credit adjustments - net............. Municipal and state................................. Total taxes based on income....................... 267 5 (15) 4 --------------261 --------------- 219 17 (15) 3 ---------------224 ---------------- --------------- Fixed charges: Interest on long-term debt.......................... Amortization of debt discount, premium and expense....................................... Other interest...................................... Interest factor of rents............................ Total fixed charges............................... 275 11 11 34 --------------331 --------------- 275 12 4 34 ---------------325 ---------------- --------------- Earnings before taxes based on income and fixed charges................................... $ 1,021 =============== 3.08 $ 874 ================ 2.69 $ ======== Ratio of earnings to fixed charges..................... EXHIBIT 12-9 THE DETROIT EDISON COMPANY COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES Year Ended December 31 ----------------------------------------------1997 ---1996 ---(Millions, except for ratio) Net income............................................. $ 417 --------------$ 328 ---------------$ -------1 - Taxes based on income: Current income taxes................................ Deferred taxes - net................................ Investment tax credit adjustments - net............. Municipal and state................................. Total taxes based on income....................... 308 (6) (14) 4 --------------292 --------------- 224 16 (15) 3 ---------------228 ---------------- --------------- Fixed charges: Interest on long-term debt.......................... Amortization of debt discount, premium and expense....................................... 262 11 275 12 EXHIBIT 12-9 THE DETROIT EDISON COMPANY COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES Year Ended December 31 ----------------------------------------------1997 ---1996 ---(Millions, except for ratio) Net income............................................. $ 417 --------------$ 328 ---------------$ -------1 - Taxes based on income: Current income taxes................................ Deferred taxes - net................................ Investment tax credit adjustments - net............. Municipal and state................................. Total taxes based on income....................... 308 (6) (14) 4 --------------292 --------------- 224 16 (15) 3 ---------------228 ---------------- --------------- Fixed charges: Interest on long-term debt.......................... Amortization of debt discount, premium and expense....................................... Other interest...................................... Interest factor of rents............................ Total fixed charges............................... 262 11 9 34 --------------316 --------------- 275 12 4 34 ---------------325 ---------------- --------------- Earnings before taxes based on income and fixed charges................................... $ 1,025 =============== 3.24 $ 881 ================ 2.71 $ ======== Ratio of earnings to fixed charges..................... EXHIBIT 12-10 DTE ENERGY COMPANY COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS Year Ended December 31 ---------------------------------------------1997 1996 1995 ---------(Millions, except for ratio and percent Net income............................................. $ 429 -------------$ 325 --------------$ ------- Taxes based on income: Current income taxes................................ Deferred taxes - net................................ Investment tax credit adjustments - net............. Municipal and state................................. Total taxes based on income..................... 267 5 (15) 4 -------------261 -------------- 219 17 (15) 3 --------------224 --------------- ------------- Fixed charges: Interest on long-term debt.......................... Amortization of debt discount, premium and expense....................................... Other interest...................................... 275 11 11 275 12 4 EXHIBIT 12-10 DTE ENERGY COMPANY COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS Year Ended December 31 ---------------------------------------------1997 1996 1995 ---------(Millions, except for ratio and percent Net income............................................. $ 429 -------------$ 325 --------------$ ------- Taxes based on income: Current income taxes................................ Deferred taxes - net................................ Investment tax credit adjustments - net............. Municipal and state................................. Total taxes based on income..................... 267 5 (15) 4 -------------261 -------------- 219 17 (15) 3 --------------224 --------------- ------------- Fixed charges: Interest on long-term debt.......................... Amortization of debt discount, premium and expense....................................... Other interest...................................... Interest factor of rents............................ Total fixed charges............................. 275 11 11 34 -------------331 -------------- 275 12 4 34 --------------325 --------------- ------------- Earnings before taxes based on income and fixed charges................................... $ 1,021 ============== $ 12 $ 874 =============== $ 16 $ ======= $ Preferred stock dividends.............................. Dividends meeting requirement of IRC Section 247..................................... Percent deductible for income tax purposes............. Amount deductible...................................... Amount not deductible.................................. Ratio of pretax income to net income................... Dividend factor for amount not deductible.............. Amount deductible...................................... Total preferred stock dividend factor........... Total fixed charges............................. Total fixed charges and preferred stock dividends............................... 4 40.00% 2 10 1.61 16 2 -------------18 331 -------------$ 349 ============== 4 40.00% 2 14 1.69 24 2 --------------26 325 --------------$ 351 =============== ------- ------$ ======= Ratio of earnings to fixed charges and preferred stock dividends........................... 2.93 2.49 EXHIBIT 12-11 THE DETROIT EDISON COMPANY COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS Year Ended December 31 ---------------------------------------------1997 1996 1995 ---------(Thousands, except for ratio and percen EXHIBIT 12-11 THE DETROIT EDISON COMPANY COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS Year Ended December 31 ---------------------------------------------1997 1996 1995 ---------(Thousands, except for ratio and percen Net income............................................. $ 417 -------------$ 328 --------------$ ------- Taxes based on income: Current income taxes................................ Deferred taxes - net................................ Investment tax credit adjustments - net............. Municipal and state................................. Total taxes based on income..................... 308 (6) (14) 4 -------------292 -------------- 224 16 (15) 3 --------------228 --------------- ------------- Fixed charges: Interest on long-term debt.......................... Amortization of debt discount, premium and expense....................................... Other interest...................................... Interest factor of rents............................ Total fixed charges............................. 262 11 9 34 -------------316 -------------- 275 12 4 34 --------------325 --------------- ------------- Earnings before taxes based on income and fixed charges................................... $ 1,025 ============== $ 12 $ 881 =============== $ 16 $ ======= $ Preferred stock dividends.............................. Dividends meeting requirement of IRC Section 247..................................... Percent deductible for income tax purposes............. Amount deductible...................................... Amount not deductible.................................. Ratio of pretax income to net income................... Dividend factor for amount not deductible.............. Amount deductible...................................... Total preferred stock dividend factor........... Total fixed charges............................. Total fixed charges and preferred stock dividends............................... 4 40.00% 2 10 1.70 17 2 -------------19 316 -------------$ 335 ============== 4 40.00% 2 14 1.70 24 2 --------------26 325 --------------$ 351 =============== ------- ------$ ======= Ratio of earnings to fixed charges and preferred stock dividends........................... 3.06 2.51 EXHIBIT 21-2 SUBSIDIARIES OF DTE ENERGY COMPANY THE DETROIT EDISON COMPANY DTE ENERGY COMPANY THE DETROIT EDISON COMPANY Midwest Energy Resources Company EXHIBIT 21-2 SUBSIDIARIES OF DTE ENERGY COMPANY THE DETROIT EDISON COMPANY DTE ENERGY COMPANY THE DETROIT EDISON COMPANY Midwest Energy Resources Company St. Clair Energy Corporation The Edison Illuminating Company of Detroit DE ENERGY SERVICES, INC. DTE BIOMASS ENERGY, INC. Alabama Energy Systems, Inc. Belleville Gas Producers, Inc. DTE Arbor Gas Producers, Inc. Escambia Gas Producers, Inc. FW Gas Producers, Inc. Orlando Gas Producers, Inc. Plainville Gas Producers, Inc. RES Power, Inc. Riverview Gas Producers, Inc. Sonoma Energy Systems, Inc. Winston Gas Producers, Inc. Fayetteville Gas Producers, Inc. Lycoming Gas Producers, Inc. Roxana Gas Producers, Inc. Adrain Gas Producers, L.L.C. Wichita Gas Producers, L.L.C. Sacramento Gas Producers, L.L.C. Salem Energy Systems, L.L.C. Winston Gas Producers, L.L.C. DTE ENERGY SERVICES, INC. PCI Enterprises Company EES Coke Battery Company, Inc. DTE ES Holdings, Inc. DTE Indiana Harbor Coke, L.C.C. (Delaware) DTE COAL SERVICES, INC. DTE CS Rail Services, Inc. EDISON DEVELOPMENT CORPORATION EdVenture Capital Corp. Plug Power L.L.C. (Delaware) DTE ENERGY TRADING, INC. GREAT LAKES ENERGY PRODUCTS, INC. DTE CoEnergy, L.L.C. SYNDECO REALTY CORPORATION DTE ENGINEERING SERVICE, INC. DTE COAL SERVICES, INC. DTE CS Rail Services, Inc. EDISON DEVELOPMENT CORPORATION EdVenture Capital Corp. Plug Power L.L.C. (Delaware) DTE ENERGY TRADING, INC. GREAT LAKES ENERGY PRODUCTS, INC. DTE CoEnergy, L.L.C. SYNDECO REALTY CORPORATION DTE ENGINEERING SERVICE, INC. DTE EDISON AMERICA, INC. DTE CAPITAL CORPORATION ALL SUBSIDIARIES ARE INCORPORATED IN MICHIGAN, UNLESS OTHERWISE NOTED. EXHIBIT 23-11 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference of our report dated January 26, 1998 appearing in this Annual Report on Form 10-K of DTE Energy Company and The Detroit Edison Company for the year ended December 31, 1997 in the following registration statements: FORM DTE ENERGY COMPANY Form S-3 Form S-8 THE DETROIT EDISON COMPANY Form S-3 Form S-3 REGISTRATION NUMBER 33-57545 333-00023 33-53207 33-64296 DELOITTE & TOUCHE LLP Detroit, Michigan February 23, 1998 ARTICLE UT The Schedule contains summary financial information extracted from DTE Energy Company's Consolidated Statement of Income, Balance Sheet, Statement of Cash Flows, Statements of Changes in Shareholders' Equity and is qualified in its entirety by reference to such financial statements. CIK: 0000936340 NAME: DTE ENERGY CO. EXHIBIT 23-11 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference of our report dated January 26, 1998 appearing in this Annual Report on Form 10-K of DTE Energy Company and The Detroit Edison Company for the year ended December 31, 1997 in the following registration statements: FORM DTE ENERGY COMPANY Form S-3 Form S-8 THE DETROIT EDISON COMPANY Form S-3 Form S-3 REGISTRATION NUMBER 33-57545 333-00023 33-53207 33-64296 DELOITTE & TOUCHE LLP Detroit, Michigan February 23, 1998 ARTICLE UT The Schedule contains summary financial information extracted from DTE Energy Company's Consolidated Statement of Income, Balance Sheet, Statement of Cash Flows, Statements of Changes in Shareholders' Equity and is qualified in its entirety by reference to such financial statements. CIK: 0000936340 NAME: DTE ENERGY CO. PERIOD TYPE FISCAL YEAR END PERIOD START PERIOD END BOOK VALUE TOTAL NET UTILITY PLANT OTHER PROPERTY AND INVEST TOTAL CURRENT ASSETS TOTAL DEFERRED CHARGES OTHER ASSETS TOTAL ASSETS COMMON CAPITAL SURPLUS PAID IN RETAINED EARNINGS TOTAL COMMON STOCKHOLDERS EQ PREFERRED MANDATORY PREFERRED LONG TERM DEBT NET SHORT TERM NOTES LONG TERM NOTES PAYABLE COMMERCIAL PAPER OBLIGATIONS LONG TERM DEBT CURRENT PORT PREFERRED STOCK CURRENT CAPITAL LEASE OBLIGATIONS LEASES CURRENT OTHER ITEMS CAPITAL AND LIAB TOT CAPITALIZATION AND LIAB GROSS OPERATING REVENUE INCOME TAX EXPENSE OTHER OPERATING EXPENSES TOTAL OPERATING EXPENSES OPERATING INCOME LOSS OTHER INCOME NET INCOME BEFORE INTEREST EXPEN 12 MOS DEC 31 1997 JAN 01 1997 DEC 31 1997 PER BOOK 8,350 880 935 1,058 0 11,223 1,951 0 1,611 3,562 0 144 3,777 0 0 0 205 0 137 110 3,288 11,223 3,764 257 22 2,763 1,001 30 971 ARTICLE UT The Schedule contains summary financial information extracted from DTE Energy Company's Consolidated Statement of Income, Balance Sheet, Statement of Cash Flows, Statements of Changes in Shareholders' Equity and is qualified in its entirety by reference to such financial statements. CIK: 0000936340 NAME: DTE ENERGY CO. PERIOD TYPE FISCAL YEAR END PERIOD START PERIOD END BOOK VALUE TOTAL NET UTILITY PLANT OTHER PROPERTY AND INVEST TOTAL CURRENT ASSETS TOTAL DEFERRED CHARGES OTHER ASSETS TOTAL ASSETS COMMON CAPITAL SURPLUS PAID IN RETAINED EARNINGS TOTAL COMMON STOCKHOLDERS EQ PREFERRED MANDATORY PREFERRED LONG TERM DEBT NET SHORT TERM NOTES LONG TERM NOTES PAYABLE COMMERCIAL PAPER OBLIGATIONS LONG TERM DEBT CURRENT PORT PREFERRED STOCK CURRENT CAPITAL LEASE OBLIGATIONS LEASES CURRENT OTHER ITEMS CAPITAL AND LIAB TOT CAPITALIZATION AND LIAB GROSS OPERATING REVENUE INCOME TAX EXPENSE OTHER OPERATING EXPENSES TOTAL OPERATING EXPENSES OPERATING INCOME LOSS OTHER INCOME NET INCOME BEFORE INTEREST EXPEN TOTAL INTEREST EXPENSE NET INCOME PREFERRED STOCK DIVIDENDS EARNINGS AVAILABLE FOR COMM COMMON STOCK DIVIDENDS TOTAL INTEREST ON BONDS CASH FLOW OPERATIONS EPS PRIMARY EPS DILUTED 12 MOS DEC 31 1997 JAN 01 1997 DEC 31 1997 PER BOOK 8,350 880 935 1,058 0 11,223 1,951 0 1,611 3,562 0 144 3,777 0 0 0 205 0 137 110 3,288 11,223 3,764 257 22 2,763 1,001 30 971 297 417 12 0 299 275 1,006 2.88 2.88 ARTICLE UT THE SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE DETROIT EDISON COMPANY'S CONSOLIDATED STATEMENT OF INCOME, BALANCE SHEET, STATEMENT OF CASH FLOWS AND STATEMENT OF CHANGES IN SHAREHOLDERS' EQUITY AND IS QUALIFIED IN IT ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS. CIK: 0000028385 NAME: DETROIT EDISON COMPANY PERIOD TYPE FISCAL YEAR END PERIOD START PERIOD END BOOK VALUE TOTAL NET UTILITY PLANT OTHER PROPERTY AND INVEST TOTAL CURRENT ASSETS TOTAL DEFERRED CHARGES OTHER ASSETS 12 MOS DEC 31 1997 JAN 01 1997 DEC 31 1997 PER BOOK 8,350 575 806 1,014 0 ARTICLE UT THE SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE DETROIT EDISON COMPANY'S CONSOLIDATED STATEMENT OF INCOME, BALANCE SHEET, STATEMENT OF CASH FLOWS AND STATEMENT OF CHANGES IN SHAREHOLDERS' EQUITY AND IS QUALIFIED IN IT ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS. CIK: 0000028385 NAME: DETROIT EDISON COMPANY PERIOD TYPE FISCAL YEAR END PERIOD START PERIOD END BOOK VALUE TOTAL NET UTILITY PLANT OTHER PROPERTY AND INVEST TOTAL CURRENT ASSETS TOTAL DEFERRED CHARGES OTHER ASSETS TOTAL ASSETS COMMON CAPITAL SURPLUS PAID IN RETAINED EARNINGS TOTAL COMMON STOCKHOLDERS EQ PREFERRED MANDATORY PREFERRED LONG TERM DEBT NET SHORT TERM NOTES LONG TERM NOTES PAYABLE COMMERCIAL PAPER OBLIGATIONS LONG TERM DEBT CURRENT PORT PREFERRED STOCK CURRENT CAPITAL LEASE OBLIGATIONS LEASES CURRENT OTHER ITEMS CAPITAL AND LIAB TOT CAPITALIZATION AND LIAB GROSS OPERATING REVENUE INCOME TAX EXPENSE OTHER OPERATING EXPENSES TOTAL OPERATING EXPENSES OPERATING INCOME LOSS OTHER INCOME NET INCOME BEFORE INTEREST EXPEN TOTAL INTEREST EXPENSE NET INCOME PREFERRED STOCK DIVIDENDS EARNINGS AVAILABLE FOR COMM COMMON STOCK DIVIDENDS TOTAL INTEREST ON BONDS CASH FLOW OPERATIONS EPS PRIMARY EPS DILUTED 12 MOS DEC 31 1997 JAN 01 1997 DEC 31 1997 PER BOOK 8,350 575 806 1,014 0 10,745 1,451 500 1,478 3,429 0 144 3,531 0 0 0 169 0 137 110 3,225 10,745 3,657 288 22 2,654 1,003 16 987 282 417 12 405 319 275 1,051 0 0 EXHIBIT 99.27 EXECUTION COPY U.S. $400,000,000 AMENDED AND RESTATED CREDIT AGREEMENT Dated as of January 21, 1998 Among EXHIBIT 99.27 EXECUTION COPY U.S. $400,000,000 AMENDED AND RESTATED CREDIT AGREEMENT Dated as of January 21, 1998 Among DTE CAPITAL CORPORATION, as Borrower and THE INITIAL LENDERS NAMED HEREIN, as Initial Lenders and CITIBANK, N.A., as Agent and BARCLAYS BANK PLC, NEW YORK BRANCH and THE FIRST NATIONAL BANK OF CHICAGO, as Co-Agents, CITICORP SECURITIES, INC., as Arranger TABLE OF CONTENTS PAGE ARTICLE I DEFINITIONS AND ACCOUNTING TERMS SECTION 1.01. SECTION 1.02. SECTION 1.03. Certain Defined Terms Computation of Time Periods Accounting Terms ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES 1 13 13 TABLE OF CONTENTS PAGE ARTICLE I DEFINITIONS AND ACCOUNTING TERMS SECTION 1.01. SECTION 1.02. SECTION 1.03. Certain Defined Terms Computation of Time Periods Accounting Terms ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES SECTION SECTION SECTION SECTION SECTION SECTION SECTION SECTION SECTION SECTION SECTION SECTION SECTION SECTION SECTION SECTION SECTION 2.01. 2.02. 2.03. 2.04. 2.05. 2.06. 2.07. 2.08. 2.09. 2.10. 2.11. 2.12. 2.13. 2.14. 2.15. 2.16. 2.17. The Revolving Credit Advances Making the Revolving Credit Advances The Competitive Bid Advances Fees Termination or Reduction of the Commitments Repayment of Revolving Credit Advances; Term Loan Election Interest on Revolving Credit Advances Interest Rate Determination Optional Conversion of Revolving Credit Advances Prepayments of Revolving Credit Advances Increased Costs Illegality Payments and Computations Taxes Sharing of Payments, Etc Extensions of Revolver Termination Date Use of Proceeds ARTICLE III CONDITIONS TO EFFECTIVENESS AND LENDING SECTION SECTION SECTION SECTION 3.01. 3.02. 3.03. 3.04. Conditions Precedent Conditions Precedent Conditions Precedent Determinations Under to Effectiveness of Sections 2.01 and 2.03 to Each Revolving Credit Borrowing to Each Competitive Bid Borrowing Section 3.01 25 27 27 28 13 14 15 18 18 18 19 19 20 20 21 21 22 23 24 24 25 1 13 13 ARTICLE IV REPRESENTATIONS AND WARRANTIES SECTION 4.01. Representations and Warranties of the Borrower 28 PAGE ARTICLE V COVENANTS OF THE BORROWER SECTION 5.01. SECTION 5.02. Affirmative Covenants Negative Covenants ARTICLE VI EVENTS OF DEFAULT SECTION 6.01. Events of Default ARTICLE VII THE AGENT SECTION SECTION SECTION SECTION 7.01. 7.02. 7.03. 7.04. Authorization and Action Agent's Reliance, Etc Citibank and Affiliates Lender Credit Decision 35 36 36 36 33 30 32 PAGE ARTICLE V COVENANTS OF THE BORROWER SECTION 5.01. SECTION 5.02. Affirmative Covenants Negative Covenants ARTICLE VI EVENTS OF DEFAULT SECTION 6.01. Events of Default ARTICLE VII THE AGENT SECTION SECTION SECTION SECTION SECTION SECTION 7.01. 7.02. 7.03. 7.04. 7.05. 7.06. Authorization and Action Agent's Reliance, Etc Citibank and Affiliates Lender Credit Decision Indemnification Successor Agent ARTICLE VIII MISCELLANEOUS SECTION SECTION SECTION SECTION SECTION SECTION SECTION SECTION SECTION SECTION SECTION SECTION SECTION 8.01. 8.02. 8.03. 8.04. 8.05. 8.06. 8.07. 8.08. 8.09. 8.10. 8.11. 8.12. 8.13. Amendments, Etc Notices, Etc No Waiver; Remedies Costs and Expenses Right of Set-off Binding Effect Assignments, Designations and Participations Confidentiality Governing Law Execution in Counterparts Jurisdiction, Etc Effective Date Assignments; Etc Waiver of Jury Trial 37 37 38 38 39 39 39 42 42 42 42 43 45 35 36 36 36 36 37 33 30 32 Schedules Schedule I Schedule II List of Applicable Lending Offices Existing Commitments and Advances Schedule 5.02(a) - Existing Liens Exhibits Exhibit A-1 Exhibit A-2 Exhibit B-1 Exhibit B-2 Exhibit C Exhibit D Exhibit E Exhibit F Form of Revolving Credit Note Form of Competitive Bid Note Form of Notice of Revolving Credit Borrowing Form of Notice of Competitive Bid Borrowing Form of Assignment and Acceptance Form of Designation Agreement Form of Certificate by DTE Energy Company Form of Support Agreement Schedules Schedule I Schedule II List of Applicable Lending Offices Existing Commitments and Advances Schedule 5.02(a) - Existing Liens Exhibits Exhibit A-1 Exhibit A-2 Exhibit B-1 Exhibit B-2 Exhibit C Exhibit D Exhibit E Exhibit F Exhibit G Exhibit H Form of Revolving Credit Note Form of Competitive Bid Note Form of Notice of Revolving Credit Borrowing Form of Notice of Competitive Bid Borrowing Form of Assignment and Acceptance Form of Designation Agreement Form of Certificate by DTE Energy Company Form of Support Agreement Form of Collateral Assignment Agreement Form of Opinion of Counsel to the Parent AMENDED AND RESTATED CREDIT AGREEMENT dated as of January 21, 1998 among DTE CAPITAL CORPORATION, a Michigan corporation (the "Borrower") which is wholly owned by DTE Energy Company, a Michigan corporation (the "Parent"), the banks, financial institutions and other institutional lenders (the "Initial Lenders") listed on the signature pages hereof, and CITIBANK, N.A. ("Citibank"), as agent (the "Agent") and Barclays Bank PLC, New York Branch and The First National Bank of Chicago, as co-agents, for the Lenders (as hereinafter defined). PRELIMINARY STATEMENTS. (1) The Borrower has entered into a Credit Agreement dated as of March 1, 1996 (the "Original Credit Agreement") with the Agents and certain lenders, financial institutions and other institutional lenders named therein or made a party thereto (collectively, the "Existing Lenders"). (2) The Borrower has requested that the Existing Lenders and others enter into this Agreement to amend and restate the Original Credit Agreement in order to increase the Commitments (as defined below) from an aggregate amount of $200,000,000 to an aggregate amount of $400,000,000 and to make certain other amendments as agreed among the Borrower, the Existing Lenders and the Agent. The Existing Lenders have indicated their willingness to amend and restate the Original Credit Agreement upon the terms and conditions stated herein. (3) The Borrower has requested that the Initial Lenders and others enter into this Agreement to amend and restate the Original Credit Agreement as set forth herein. The Existing Lenders party hereto have indicated their willingness to amend and restate the Original Credit Agreement upon the terms and conditions stated herein. (4) Simultaneously with the execution hereof, the Existing Lenders that are not Initial Lenders have entered into an assignment agreement (as amended, supplemented or otherwise modified from time to time, the "Assignment Agreement") with the Borrower and the Agent pursuant to which such Existing Lenders have agreed to sell and assign to the Initial Lenders all of their Existing Commitments (as hereinafter defined) and the Initial Lenders have agreed to purchase and assume, as of the Effective Date, all of such Existing Lenders' rights and obligations under the Original Credit Agreement on the terms set forth in the Assignment Agreement. After giving effect to such sale AMENDED AND RESTATED CREDIT AGREEMENT dated as of January 21, 1998 among DTE CAPITAL CORPORATION, a Michigan corporation (the "Borrower") which is wholly owned by DTE Energy Company, a Michigan corporation (the "Parent"), the banks, financial institutions and other institutional lenders (the "Initial Lenders") listed on the signature pages hereof, and CITIBANK, N.A. ("Citibank"), as agent (the "Agent") and Barclays Bank PLC, New York Branch and The First National Bank of Chicago, as co-agents, for the Lenders (as hereinafter defined). PRELIMINARY STATEMENTS. (1) The Borrower has entered into a Credit Agreement dated as of March 1, 1996 (the "Original Credit Agreement") with the Agents and certain lenders, financial institutions and other institutional lenders named therein or made a party thereto (collectively, the "Existing Lenders"). (2) The Borrower has requested that the Existing Lenders and others enter into this Agreement to amend and restate the Original Credit Agreement in order to increase the Commitments (as defined below) from an aggregate amount of $200,000,000 to an aggregate amount of $400,000,000 and to make certain other amendments as agreed among the Borrower, the Existing Lenders and the Agent. The Existing Lenders have indicated their willingness to amend and restate the Original Credit Agreement upon the terms and conditions stated herein. (3) The Borrower has requested that the Initial Lenders and others enter into this Agreement to amend and restate the Original Credit Agreement as set forth herein. The Existing Lenders party hereto have indicated their willingness to amend and restate the Original Credit Agreement upon the terms and conditions stated herein. (4) Simultaneously with the execution hereof, the Existing Lenders that are not Initial Lenders have entered into an assignment agreement (as amended, supplemented or otherwise modified from time to time, the "Assignment Agreement") with the Borrower and the Agent pursuant to which such Existing Lenders have agreed to sell and assign to the Initial Lenders all of their Existing Commitments (as hereinafter defined) and the Initial Lenders have agreed to purchase and assume, as of the Effective Date, all of such Existing Lenders' rights and obligations under the Original Credit Agreement on the terms set forth in the Assignment Agreement. After giving effect to such sale and assignment as of the Effective Date, the Commitments (as hereinafter defined) of each of the Initial Lenders will be as set forth opposite such Initial Lender's name on the signature pages hereof. NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements contained herein, the parties hereto hereby agree that, subject to the satisfaction of the conditions set forth in Article III, the Original Credit Agreement is amended and restated in its entirety to read 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): "Advance" means a Revolving Credit Advance or a Competitive Bid Advance. "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 5% or more of the Voting Stock of such Person or to direct or cause the direction of the management and policies of such Person, whether through the ownership of Voting Stock, by contract or otherwise. "Agent's Account" means the account of the Agent maintained by the Agent at Citibank with its office at One Court Square, Long Island City, NY 11120, Account No. 36852248, Attention: Shawn Bernard. vote 5% or more of the Voting Stock of such Person or to direct or cause the direction of the management and policies of such Person, whether through the ownership of Voting Stock, by contract or otherwise. "Agent's Account" means the account of the Agent maintained by the Agent at Citibank with its office at One Court Square, Long Island City, NY 11120, Account No. 36852248, Attention: Shawn Bernard. "Applicable Lending Office" means, with respect to each Lender, such Lender's Domestic Lending Office in the case of a Base Rate Advance and such Lender's Eurodollar Lending Office in the case of a Eurodollar Rate Advance and, in the case of a Competitive Bid Advance, the office of such Lender notified by such Lender to the Agent as its Applicable Lending Office with respect to such Competitive Bid Advance. "Applicable Margin" means, as of any date, a percentage per annum determined by reference to the Public Debt Rating in effect on such date as set forth below: Public Debt Rating S&P/Moody's ---------------------------------Level 1 A- / A3 or above Level 2 Lower than Level 1, but at least BBB+ / Baa1 or above Lower than Level 2, but at least BBB / Baa2 or above Level 4 Lower than Level 3, but at least BBB/ Baa3 or above Level 5 Lower than Level 4, or no Public Debt Rating in Effect Applicable Margin for Base Rate Advances -----------------------0% Applicable Margin for Eurodollar Rate Advances -----------------------------.225% 0% .250% 0% .250% 0% .300% 0% .700% "Applicable Percentage" means, as of any date, a percentage per annum determined by reference to the Public Debt Rating in effect on such date as set forth below: Public Debt Rating S&P/Moody's -----------------------Level 1 A- / A3 or above Level 2 Lower than Level 1, but at least BBB+ / Baa1 or above Level 3 Lower than Level 2, but at least BBB / Baa2 or above Level 4 Lower than Level 3, but at least BBB/ Baa3 or above Level 5 Lower than Level 4, or no Public Debt Rating in Effect Applicable Percentage ---------------.125% .150% .200% .250% .300% "Assigned Rights" means the rights of the Borrower under Sections 1, 2, 3 and 4 of the Support Agreement and all other rights that are intended to secure the obligations of the Borrower under this Agreement. "Applicable Percentage" means, as of any date, a percentage per annum determined by reference to the Public Debt Rating in effect on such date as set forth below: Public Debt Rating S&P/Moody's -----------------------Level 1 A- / A3 or above Level 2 Lower than Level 1, but at least BBB+ / Baa1 or above Level 3 Lower than Level 2, but at least BBB / Baa2 or above Level 4 Lower than Level 3, but at least BBB/ Baa3 or above Level 5 Lower than Level 4, or no Public Debt Rating in Effect Applicable Percentage ---------------.125% .150% .200% .250% .300% "Assigned Rights" means the rights of the Borrower under Sections 1, 2, 3 and 4 of the Support Agreement and all other rights that are intended to secure the obligations of the Borrower under this Agreement. "Assignment Agreement" has the meaning specified in the Preliminary Statements hereto. "Assignment and Acceptance" means an assignment and acceptance entered into by a Lender and an Eligible Assignee, and accepted by the Agent, in substantially the form of Exhibit C hereto. "Base Rate" means a fluctuating interest rate per annum in effect from time to time, which rate per annum shall at all times be equal to the highest of: (a) the rate of interest announced publicly by Citibank in New York, New York, from time to time, as Citibank's base rate; (b) the sum (adjusted to the nearest 1/16 of 1% or, if there is no nearest 1/16 of 1%, to the next higher 1/16 of 1%) of (i) 1/2 of 1% per annum, plus (ii) the rate obtained by dividing (A) the latest three-week moving average of secondary market morning offering rates in the United States for three-month certificates of deposit of major United States money market banks, such three-week moving average (adjusted to the basis of a year of 360 days) being determined weekly on each Monday (or, if such day is not a Business Day, on the next succeeding Business Day) for the three-week period ending on the previous Friday by Citibank on the basis of such rates reported by certificate of deposit dealers to and published by the Federal Reserve Bank of New York or, if such publication shall be suspended or terminated, on the basis of quotations for such rates received by Citibank from three New York certificate of deposit dealers of recognized standing selected by Citibank, by (B) a percentage equal to 100% minus the average of the daily percentages specified during such three-week period by the Board of Governors of the Federal Reserve System (or any successor) for determining the maximum reserve requirement (including, but not limited to, any emergency, supplemental or other marginal reserve requirement) for Citibank with respect to liabilities consisting of or including (among other liabilities) three-month U.S. dollar non-personal time deposits in the United States, plus (iii) the average during such three-week period of the annual assessment rates estimated by Citibank for determining the then current annual assessment payable by Citibank to the Federal Deposit Insurance Corporation (or any successor) for insuring U.S. dollar deposits of Citibank in the United States; and (c) 1/2 of one percent per annum above the Federal Funds Rate. reserve requirement (including, but not limited to, any emergency, supplemental or other marginal reserve requirement) for Citibank with respect to liabilities consisting of or including (among other liabilities) three-month U.S. dollar non-personal time deposits in the United States, plus (iii) the average during such three-week period of the annual assessment rates estimated by Citibank for determining the then current annual assessment payable by Citibank to the Federal Deposit Insurance Corporation (or any successor) for insuring U.S. dollar deposits of Citibank in the United States; and (c) 1/2 of one percent per annum above the Federal Funds Rate. "Base Rate Advance" means a Revolving Credit Advance that bears interest as provided in Section 2.07(a)(i). "Borrower" has the meaning specified in the recital of parties to this Agreement. "Borrowing" means a Revolving Credit Borrowing or a Competitive Bid Borrowing. "Business Day" means a day of the year on which banks are not required or authorized by law to close in New York City 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 tangible net worth plus Consolidated Debt. "Collateral Assignment Agreement" has the meaning specified in Section 3.01(h)(vi). "Commitment" has the meaning specified in Section 2.01. "Competitive Bid Advance" means an advance by a Lender to the Borrower as part of a Competitive Bid Borrowing resulting from the competitive bidding procedure described in Section 2.03 and refers to a Fixed Rate Advance or a LIBO Rate Advance. "Competitive Bid Borrowing" means a borrowing consisting of simultaneous Competitive Bid Advances from each of the Lenders whose offer to make one or more Competitive Bid Advances as part of such borrowing has been accepted under the competitive bidding procedure described in Section 2.03. "Competitive Bid Note" means a promissory note of the Borrower payable to the order of any Lender, in substantially the form of Exhibit A-2 hereto, evidencing the indebtedness of the Borrower to such Lender resulting from a Competitive Bid Advance made by such Lender. "Competitive Bid Reduction" has the meaning specified in Section 2.01. "Confidential Information" means information that a Loan Party furnishes to the Agent or any Lender in a writing 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 a Loan Party. "Consolidated" refers to the consolidation of accounts in accordance with GAAP. "Convert", "Conversion" and "Converted" each refers to a conversion of Revolving Credit Advances of one Type into Revolving Credit Advances of the other Type pursuant to Section 2.08 or 2.09. "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 such Person's business), (c) all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments, (d) all obligations of such Person created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property), (e) all obligations of such Person as lessee under leases that have been or should be, in accordance with GAAP, recorded as capital leases, (f) all obligations, contingent or otherwise, of such Person in respect of acceptances, letters of credit or similar extensions of credit, (g) all obligations of such Person in respect of Hedge Agreements, (h) all Debt of others referred to in clauses (a) through (g) above or clause (i) below guaranteed directly or indirectly in any manner by such Person, or in effect guaranteed directly or indirectly by such Person through an agreement (1) to pay or purchase such Debt or to advance or supply funds for the payment or purchase of such Debt, (2) to purchase, sell or lease (as lessee or lessor) property, or to purchase or sell services, primarily for the purpose of enabling the debtor to make payment of such Debt or to assure the holder of such Debt against loss, (3) to supply funds to or in any other manner invest in the debtor (including any agreement to pay for property or services irrespective of whether such property is received or such services are rendered) or (4) otherwise to assure a creditor against loss, and (i) all Debt referred to in clauses (a) through (h) above secured by (or for which the holder of such Debt has an existing right, contingent or otherwise, to be secured by) any Lien on property (including, without limitation, accounts and contract rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such Debt. See the definition of "Nonrecourse Debt" below. "Declining Lender" has the meaning specified in Section 2.16. "DECO" means The Detroit Edison Company, a Michigan corporation wholly owned by the Parent. "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. "Designated Bidder" means (a) an Eligible Assignee or (b) a special purpose corporation that is engaged in making, purchasing or otherwise investing in commercial loans in the ordinary course of its business and that issues (or the parent of which issues) commercial paper rated at least "Prime-1" (or the then equivalent grade) by Moody's or "A-1" (or the then equivalent grade) by S&P that, in the case of either clause (a) or (b), (i) is organized under the laws of the United States or any State thereof, (ii) shall have become a party hereto pursuant to Section 8.07(d), (e) and (f) and (iii) is not otherwise a Lender. "Designation Agreement" means a designation agreement entered into by a Lender (other than a Designated Bidder) and a Designated Bidder, and accepted by the Agent, in substantially the form of Exhibit D hereto. "Disclosed Litigation" has the meaning specified in Section 3.01(b). "Domestic Lending Office" means, with respect to any Lender, the office of such Lender specified as its "Domestic Lending Office" opposite its name on Schedule I hereto or in the Assignment and Acceptance pursuant to which it became a Lender, or such other office of such Lender as such Lender may from time to time specify to the Borrower and the Agent. "EBITDA" means, for any period, net income (or net loss) plus the sum of (a) interest expense, (b) income tax expense, (c) depreciation expense and (d) amortization expense, in each case determined in accordance with GAAP for such period. "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 $250,000,000; (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 $250,000,000; (v) a commercial bank organized under the laws of any other country that is a member of the Organization for surplus of at least $250,000,000; (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 $250,000,000; (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 $250,000,000, 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 $250,000,000; and (viii) any other Person approved by the Agent and 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. "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 health, safety or 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, health, safety or natural resources, including, without limitation, those relating to the use, handling, transportation, treatment, storage, disposal, release or discharge of Hazardous Materials. "Environmental Permit" means any permit, approval, identification number, license or other authorization required under any Environmental Law. "ERISA" means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder. "ERISA Affiliate" means any Person that for purposes of Title IV of ERISA is a member of the Borrower's controlled group, or under common control with the Borrower, within the meaning of Section 414 of the Internal Revenue Code. "ERISA Event" means (a) (i) the occurrence of a reportable event, within the meaning of Section 4043 of ERISA, with respect to any Plan unless the 30-day notice requirement with respect to such event has been waived by the PBGC, or (ii) the requirements of subsection (1) of Section 4043(b) of ERISA (without regard to subsection (2) of such Section) are met with 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. or (h) the institution by the PBGC of proceedings to terminate a Plan pursuant to Section 4042 of ERISA, or the occurrence of any event or condition described in Section 4042 of ERISA that constitutes grounds for the termination of, or the appointment of a trustee to administer, a Plan. "Eurocurrency Liabilities" has the meaning assigned to that term in Regulation D of the Board of Governors of the Federal Reserve System, as in effect from time to time. "Eurodollar Lending Office" means, with respect to any Lender, the office of such Lender specified as its "Eurodollar Lending Office" opposite its name on Schedule I hereto or in the Assignment and Acceptance pursuant to which it became a Lender (or, if no such office is specified, its Domestic Lending Office), or such other office of such Lender as such Lender may from time to time specify to the Borrower and the Agent. "Eurodollar Rate" means, for any Interest Period for each Eurodollar Rate Advance comprising part of the same Revolving Credit Borrowing, an interest rate per annum equal to the rate per annum obtained by dividing (a) 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 substantially equal to such Reference Bank's Eurodollar Rate Advance comprising part of such Revolving Credit 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. The Eurodollar Rate for any Interest Period for each Eurodollar Rate Advance comprising part of the same Revolving Credit Borrowing shall be determined by the Agent on the basis of applicable rates furnished to and received by the Agent from the Reference Banks two Business Days before the first day of such Interest Period, subject, however, to the provisions of Section 2.08. "Eurodollar Rate Advance" means a Revolving Credit Advance that bears interest as provided in Section 2.07(a) (ii). "Eurodollar Rate Reserve Percentage" for any Interest Period for all Eurodollar Rate Advances or LIBO 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 or LIBO Rate Advances is determined) having a term equal to such Interest Period. "Events of Default" has the meaning specified in Section 6.01. "Existing Advance" means, for each Existing Lender, all of such Existing Lender's rights in and to, and all of its obligations under, the Advances (as defined in the Original Credit Agreement) evidenced by the Existing Notes and owing to it under the Original Credit Agreement as of the Effective Date, the aggregate amount of which is set forth opposite such Existing Lender's name on Schedule II hereto. "Existing Commitment" means, for each Existing Lender, all of such Existing Lender's rights in and to, and all of its obligations under, the Commitment (as defined in the Original Credit Agreement) held by it under the Original Credit Agreement as of the Effective Date, the aggregate amount of which is set forth opposite such Existing Lender's name on Schedule II hereto. "Existing Lenders" has the meaning specified in the Preliminary Statements hereto. "Existing Notes" means the Notes as defined in, and issued pursuant to, the Original Credit Agreement. "Extending Lenders" has the meaning specified in Section 2.16. "Existing Notes" means the Notes as defined in, and issued pursuant to, the Original Credit Agreement. "Extending Lenders" has the meaning specified in Section 2.16. "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, controller, treasurer or any assistant treasurer of such Person. "Fixed Rate Advances" has the meaning specified in Section 2.03(a)(i). "GAAP" has the meaning specified in Section 1.03. "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. "Information Memorandum" means the information memorandum dated December 1997 used by the Agent in connection with the syndication of the Commitments. "Insufficiency" means, with respect to any Plan, the amount, if any, of its unfunded benefit liabilities, as defined in Section 4001(a)(18) of ERISA. "Interest Period" means, for each Eurodollar Rate Advance comprising part of the same Revolving Credit Borrowing and each LIBO Rate Advance comprising part of the same Competitive Bid Borrowing, the period commencing on the date of such Eurodollar Rate Advance or LIBO 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 Revolver Termination Date then in effect or, if the Advances have been converted to a term loan pursuant to Section 2.06 prior to such selection, which ends after the Maturity Date; (ii) Interest Periods commencing on the same date for Eurodollar Rate Advances comprising part of the same Revolving Credit Borrowing or for LIBO Rate Advances comprising part of the same Competitive Bid 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 (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 Debentures" means subordinated junior deferrable interest debentures issued by DECO from time to time. "Lenders" means the Initial Lenders and each Person that shall become a party hereto pursuant to Section 8.07 (a), (b) and (c) and, except when used in reference to a Revolving Credit Advance, a Revolving Credit Borrowing, a Revolving Credit Note, a Commitment or a related term, each Designated Bidder. "LIBO Rate" means, for any Interest Period for all LIBO Rate Advances comprising part of the same Competitive Bid Borrowing, an interest rate per annum equal to the rate per annum obtained by dividing (a) 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 substantially equal to the amount that would be the Reference Banks' respective ratable shares of such Borrowing if such Borrowing were to be a Revolving Credit 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. The LIBO Rate for any Interest Period for each LIBO Rate Advance comprising part of the same Competitive Bid Borrowing shall be determined by the Agent on the basis of applicable rates furnished to and received by the Agent from the Reference Banks two Business Days before the first day of such Interest Period, subject, however, to the provisions of Section 2.08. "LIBO Rate Advances" has the meaning specified in Section 2.03(a)(i). "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 Notes, the Support Agreement and the Collateral Assignment Agreement. "Loan Parties" means the Borrower and the Parent. "Material Adverse Change" means any material adverse change in the business, condition (financial or otherwise), operations, performance, properties or prospects of either Loan Party 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, properties or prospects of either Loan Party or either Loan Party and its Subsidiaries taken as a whole, (b) the rights and remedies of the Agent or any Lender under any Loan Document or (c) the ability of either Loan Party to perform its obligations under any Loan Document to which it is a party. Loan Party and its Subsidiaries taken as a whole, (b) the rights and remedies of the Agent or any Lender under any Loan Document or (c) the ability of either Loan Party to perform its obligations under any Loan Document to which it is a party. "Maturity Date" means the earlier of (a) the one year anniversary of the Term Loan Conversion Date and (b) the date of the termination in whole of the aggregate Commitments pursuant to Section 2.05 or 6.01. "Moody's" means Moody's Investors Service, Inc. "Multiemployer Plan" means a multiemployer plan, as defined in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate is making or accruing an obligation to make contributions, or has within any of the preceding five plan years made or accrued an obligation to make contributions. "Multiple Employer Plan" means a single employer plan, as defined in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the Borrower or any ERISA Affiliate and at least one Person other than the Borrower and the ERISA Affiliates or (b) was so maintained and in respect of which the Borrower or any ERISA Affiliate could have liability under Section 4064 or 4069 of ERISA in the event such plan has been or were to be terminated. "Nonrecourse Debt" means Debt of either Loan Party or any of their Subsidiaries in respect of which no recourse may be had by the creditors under such Debt against such Loan Party or such Subsidiary in its individual capacity or against the assets of such Loan Party or such Subsidiary, other than assets which were purchased by such Loan Party or such Subsidiary with the proceeds of such Debt. "Note" means a Revolving Credit Note or a Competitive Bid Note. "Notice of Competitive Bid Borrowing" has the meaning specified in Section 2.03(a)(i). "Notice of Revolving Credit Borrowing" has the meaning specified in Section 2.02(a). "Original Credit Agreement" has the meaning specified in the Preliminary Statement hereto. "Parent" has the meaning specified in the recital by the parties to this Agreement. "PBGC" means the Pension Benefit Guaranty Corporation (or any successor). "Permitted Liens" means such of the following as to which no enforcement, collection, execution, levy or foreclosure proceeding shall have been commenced: (a) Liens for taxes, assessments and governmental charges or levies to the extent not required to be paid under Section 5.01(b) hereof; (b) Liens imposed by law, such as materialmen's, mechanics', carriers', workmen's and repairmen's Liens and other similar Liens arising in the ordinary course of business securing obligations that are not overdue for a period of more than 30 days; (c) pledges or deposits to secure obligations under workers' compensation laws or similar legislation or to secure public or statutory obligations; and (d) easements, rights of way and other encumbrances on title to real property that do not render title to the property encumbered thereby unmarketable or materially adversely affect the use of such property for its present purposes. "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. "Public Debt Rating" means, as of any date, the lowest rating that has been most recently announced by either "Public Debt Rating" means, as of any date, the lowest rating that has been most recently announced by either S&P or Moody's, as the case may be, for any class of non-credit enhanced long-term First Mortgage Bonds issued by DECO. For purposes of the foregoing, (a) if only one of S&P and Moody's shall have in effect a Public Debt Rating, the Applicable Margin and the Applicable Percentage shall be determined by reference to the available rating; (b) if neither S&P nor Moody's shall have in effect a Public Debt Rating, the Applicable Margin and the Applicable Percentage will be set in accordance with Level 5 under the definition of "Applicable Margin" or "Applicable Percentage", as the case may be; (c) if the ratings established by S&P and Moody's shall fall within different levels, the Applicable Margin and the Applicable Percentage shall be based upon the lower rating; (d) if any rating established by S&P or Moody's shall be changed, such change shall be effective as of the date on which such change is first announced publicly by the rating agency making such change; and (e) if S&P or Moody's shall change the basis on which ratings are established, each reference to the Public Debt Rating announced by S&P or Moody's, as the case may be, shall refer to the then equivalent rating by S&P or Moody's, as the case may be. "Reference Banks" means Citibank, N.A., Barclays Bank PLC and The First National Bank of Chicago. "Register" has the meaning specified in Section 8.07(g). "Required Lenders" means at any time Lenders owed at least 66-2/3% of the then aggregate unpaid principal amount of the Revolving Credit Advances owing to Lenders, or, if no such principal amount is then outstanding, Lenders having at least 66-2/3% of the Commitments. "Revolver Termination Date" means the earlier of (a) January 20, 1999 or, if extended pursuant to Section 2.16, the date that is 364 days after the Revolver Termination Date then in effect, and (b) the date of termination in whole of the Commitments pursuant to Section 2.05 or 6.01; provided, however, that the Revolver Termination Date of any Lender that is a Declining Lender to any requested extension pursuant to Section 2.16 shall be the Revolver Termination Date in effect immediately prior to the date on which such extension was granted, for all purposes of this Agreement. "Revolving Credit Advance" means an advance by a Lender to the Borrower as part of a Revolving Credit Borrowing and, if the Borrower has made the Term Loan Election in accordance with Section 2.06, includes each such advance that remains outstanding after the Term Loan Conversion Date, and refers to a Base Rate Advance or a Eurodollar Rate Advance (each of which shall be a "Type" of Revolving Credit Advance). "Revolving Credit Borrowing" means a borrowing consisting of simultaneous Revolving Credit Advances of the same Type made by each of the Lenders pursuant to Section 2.01. "Revolving Credit Note" means a promissory note of the Borrower payable to the order of any Lender, in substantially the form of Exhibit A-1 hereto, evidencing the aggregate indebtedness of the Borrower to such Lender resulting from the Revolving Credit Advances made by such Lender. "S&P" means Standard & Poor's Ratings Group, a division of McGraw-Hill, Inc. "SEC Reports" means the following reports filed with or sent to the Securities and Exchange Commission by the Parent or DECO, as the case may be: (a) the Form 10K of DECO for the year ended December 31, 1996, (b) the Forms 10Q of DECO for the quarters ended March 31, 1997, June 30, 1997 and September 30, 1997, (c) the Forms 8K of the Parent dated March 13, 1997, June 11, 1997, and September 22, 1997, and (d) the Audited Consolidated Financial Statements of the Parent for the year ended December 31, 1996, together with the notes thereto, as contained in the Parent's 1996 annual report to Shareholders. "Single Employer Plan" means a single employer plan, as defined in Section 4001(a)(15) of ERISA, that (a) is (c) the Forms 8K of the Parent dated March 13, 1997, June 11, 1997, and September 22, 1997, and (d) the Audited Consolidated Financial Statements of the Parent for the year ended December 31, 1996, together with the notes thereto, as contained in the Parent's 1996 annual report to Shareholders. "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. "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. "Support Agreement" has the meaning specified in Section 3.01(h)(v). "Term Loan Conversion Date" has the meaning specified in Section 2.06. "Term Loan Election" has the meaning specified in Section 2.06. "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. All accounting terms not specifically defined herein shall be construed in accordance with generally accepted accounting principles consistent with those applied in the preparation of the financial statements referred to in Section 4.01(e) ("GAAP"). ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES SECTION 2.01. The Revolving Credit Advances. (a) Effective as of the Effective Date, each Existing Lender hereby sells and assigns all of its rights in and to, and all of its obligations under, each Existing Advance owing to it and the Existing Commitment held by it to the Initial Lenders and each Initial Lender hereby purchases and assumes, pro rata based on such Initial Lender's Commitment, all of the Existing Lenders' rights in and to, and all of their obligations under, the Existing Advances and the Existing Commitments, the aggregate amount of which is set forth opposite such Existing Lender's name on Schedule II hereto. In furtherance of the foregoing, each Initial Lender hereby authorizes and directs the Administrative Agent to accept the Assignment Agreement on behalf of such Initial Lender. (b) Each Lender severally agrees, on the terms and conditions hereinafter set forth, to make Revolving Credit ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES SECTION 2.01. The Revolving Credit Advances. (a) Effective as of the Effective Date, each Existing Lender hereby sells and assigns all of its rights in and to, and all of its obligations under, each Existing Advance owing to it and the Existing Commitment held by it to the Initial Lenders and each Initial Lender hereby purchases and assumes, pro rata based on such Initial Lender's Commitment, all of the Existing Lenders' rights in and to, and all of their obligations under, the Existing Advances and the Existing Commitments, the aggregate amount of which is set forth opposite such Existing Lender's name on Schedule II hereto. In furtherance of the foregoing, each Initial Lender hereby authorizes and directs the Administrative Agent to accept the Assignment Agreement on behalf of such Initial Lender. (b) Each Lender severally agrees, on the terms and conditions hereinafter set forth, to make Revolving Credit Advances to the Borrower from time to time on any Business Day during the period from the Effective Date until the earlier of the Revolver Termination Date and the Term Loan Conversion Date in an aggregate amount not to exceed at any time outstanding the amount set forth opposite such Lender's name on the signature pages hereof or, if such Lender has entered into any Assignment and Acceptance, set forth for such Lender in the Register maintained by the Agent pursuant to Section 8.07(g), as such amount may be reduced pursuant to Section 2.05 (such Lender's "Commitment"), provided that the aggregate amount of the Commitments of the Lenders shall be deemed used from time to time to the extent of the aggregate amount of the Competitive Bid Advances then outstanding and such deemed use of the aggregate amount of the Commitments shall be allocated among the Lenders ratably according to their respective Commitments (such deemed use of the aggregate amount of the Commitments being a "Competitive Bid Reduction"). Each Revolving Credit Borrowing shall be in an aggregate amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof (or, if less, an aggregate amount equal to the amount by which the aggregate amount of a proposed Competitive Bid Borrowing requested by the Borrower exceeds the aggregate amount of Competitive Bid Advances offered to be made by the Lenders and accepted by the Borrower in respect of such Competitive Bid Borrowing, if such Competitive Bid Borrowing is made on the same date as such Revolving Credit Borrowing) 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 2.10 and reborrow under this Section 2.01. SECTION 2.02. Making the Revolving Credit Advances. (a) Each Revolving Credit 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 Revolving Credit Borrowing in the case of a Revolving Credit Borrowing consisting of Eurodollar Rate Advances, or 9:00 A.M. (New York City time) the Business Day of the proposed Revolving Credit Borrowing in the case of a Revolving Credit 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 Revolving Credit Borrowing (a "Notice of Revolving Credit Borrowing") shall be by telephone, confirmed immediately in writing, or telecopier or telex in substantially the form of Exhibit B-1 hereto, specifying therein the requested (i) date of such Revolving Credit Borrowing, (ii) Type of Advances comprising such Revolving Credit Borrowing, (iii) aggregate amount of such Revolving Credit Borrowing, and (iv) in the case of a Revolving Credit Borrowing consisting of Eurodollar Rate Advances, initial Interest Period for each such Revolving Credit Advance. Each Lender shall, before 11:00 A.M. (New York City time) on the date of such Revolving Credit 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 Revolving Credit 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 at the Agent's address referred to in Section 8.02. (b) Anything in subsection (a) above to the contrary notwithstanding, (i) the Borrower may not select Eurodollar Rate Advances for any Revolving Credit Borrowing if the aggregate amount of such Revolving Credit 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 2.08 or 2.12 and (ii) the Eurodollar Rate Advances may not be outstanding as part of more than ten separate Revolving Credit Borrowings. (c) Each Notice of Revolving Credit Borrowing shall be irrevocable and binding on the Borrower. In the case of any Revolving Credit Borrowing that the related Notice of Revolving Credit 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 Revolving Credit Borrowing for such Revolving Credit Borrowing the applicable conditions set forth in Article III, 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 such Lender to fund the Revolving Credit Advance to be made by such Lender as part of such Revolving Credit Borrowing when such Revolving Credit Advance, as a result of such failure, is not made on such date. (d) Unless the Agent shall have received notice from a Lender prior to the date of any Revolving Credit Borrowing that such Lender will not make available to the Agent such Lender's ratable portion of such Revolving Credit Borrowing, the Agent may assume that such Lender has made such portion available to the Agent on the date of such Revolving Credit 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 Revolving Credit 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 Revolving Credit 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 Revolving Credit Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Revolving Credit Advance on the date of such Revolving Credit 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 Revolving Credit Borrowing. SECTION 2.03. The Competitive Bid Advances. (a) Each Lender severally agrees that the Borrower may make Competitive Bid Borrowings under this Section 2.03 from time to time on any Business Day during the period from the date hereof until the date occurring 30 days prior to the earlier of the Revolver Termination Date and the Term Loan Conversion Date in the manner set forth below; provided that, following the making of each Competitive Bid Borrowing, the aggregate amount of the Advances then outstanding shall not exceed the aggregate amount of the Commitments of the Lenders (computed without regard to any Competitive Bid Reduction). (i) The Borrower may request a Competitive Bid Borrowing under this Section 2.03 by delivering to the Agent, by telecopier or telex, a notice of a Competitive Bid Borrowing (a "Notice of Competitive Bid Borrowing"), in substantially the form of Exhibit B-2 hereto, specifying therein the requested (v) date of such proposed Competitive Bid Borrowing, (w) aggregate amount of such proposed Competitive Bid Borrowing, (x) in the case of a Competitive Bid Borrowing consisting of LIBO Rate Advances, Interest Period, or in the case of a Competitive Bid Borrowing consisting of Fixed Rate Advances, maturity date for repayment of each Fixed Rate Advance to be made as part of such Competitive Bid Borrowing (which maturity date may not be earlier than the date occurring 7 days after the date of such Competitive Bid Borrowing or later than the earlier of (I) 180 days after the date of such Competitive Bid Borrowing and (II) the earlier of the Revolver Termination Date and the Term Loan Conversion Date), (y) interest payment date or dates relating thereto, and (z) other terms (if any) to be applicable to such Competitive Bid Borrowing, not later than 10:00 A.M. (New York City time) (A) at least one Business Day prior to the date of the proposed Competitive Bid Borrowing, if the Borrower shall specify in the Notice of Competitive Bid Borrowing that the rates of interest to be offered by the Lenders shall be fixed rates per annum (the Advances comprising any such Competitive Bid Borrowing being referred to herein as "Fixed Rate Advances") and (B) at least five Business Days prior to the date of the proposed Competitive Bid Borrowing, if the Borrower shall instead specify in the Notice of (c) Each Notice of Revolving Credit Borrowing shall be irrevocable and binding on the Borrower. In the case of any Revolving Credit Borrowing that the related Notice of Revolving Credit 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 Revolving Credit Borrowing for such Revolving Credit Borrowing the applicable conditions set forth in Article III, 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 such Lender to fund the Revolving Credit Advance to be made by such Lender as part of such Revolving Credit Borrowing when such Revolving Credit Advance, as a result of such failure, is not made on such date. (d) Unless the Agent shall have received notice from a Lender prior to the date of any Revolving Credit Borrowing that such Lender will not make available to the Agent such Lender's ratable portion of such Revolving Credit Borrowing, the Agent may assume that such Lender has made such portion available to the Agent on the date of such Revolving Credit 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 Revolving Credit 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 Revolving Credit 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 Revolving Credit Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Revolving Credit Advance on the date of such Revolving Credit 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 Revolving Credit Borrowing. SECTION 2.03. The Competitive Bid Advances. (a) Each Lender severally agrees that the Borrower may make Competitive Bid Borrowings under this Section 2.03 from time to time on any Business Day during the period from the date hereof until the date occurring 30 days prior to the earlier of the Revolver Termination Date and the Term Loan Conversion Date in the manner set forth below; provided that, following the making of each Competitive Bid Borrowing, the aggregate amount of the Advances then outstanding shall not exceed the aggregate amount of the Commitments of the Lenders (computed without regard to any Competitive Bid Reduction). (i) The Borrower may request a Competitive Bid Borrowing under this Section 2.03 by delivering to the Agent, by telecopier or telex, a notice of a Competitive Bid Borrowing (a "Notice of Competitive Bid Borrowing"), in substantially the form of Exhibit B-2 hereto, specifying therein the requested (v) date of such proposed Competitive Bid Borrowing, (w) aggregate amount of such proposed Competitive Bid Borrowing, (x) in the case of a Competitive Bid Borrowing consisting of LIBO Rate Advances, Interest Period, or in the case of a Competitive Bid Borrowing consisting of Fixed Rate Advances, maturity date for repayment of each Fixed Rate Advance to be made as part of such Competitive Bid Borrowing (which maturity date may not be earlier than the date occurring 7 days after the date of such Competitive Bid Borrowing or later than the earlier of (I) 180 days after the date of such Competitive Bid Borrowing and (II) the earlier of the Revolver Termination Date and the Term Loan Conversion Date), (y) interest payment date or dates relating thereto, and (z) other terms (if any) to be applicable to such Competitive Bid Borrowing, not later than 10:00 A.M. (New York City time) (A) at least one Business Day prior to the date of the proposed Competitive Bid Borrowing, if the Borrower shall specify in the Notice of Competitive Bid Borrowing that the rates of interest to be offered by the Lenders shall be fixed rates per annum (the Advances comprising any such Competitive Bid Borrowing being referred to herein as "Fixed Rate Advances") and (B) at least five Business Days prior to the date of the proposed Competitive Bid Borrowing, if the Borrower shall instead specify in the Notice of Competitive Bid Borrowing that the rates of interest be offered by the Lenders are to be based on the LIBO Competitive Bid Borrowing that the rates of interest be offered by the Lenders are to be based on the LIBO Rate (the Advances comprising such Competitive Bid Borrowing being referred to herein as "LIBO Rate Advances"). Each Notice of Competitive Bid Borrowing shall be irrevocable and binding on the Borrower. The Agent shall in turn promptly notify each Lender of each request for a Competitive Bid Borrowing received by it from the Borrower by sending such Lender a copy of the related Notice of Competitive Bid Borrowing. (ii) Each Lender may, if, in its sole discretion, it elects to do so, irrevocably offer to make one or more Competitive Bid Advances to the Borrower as part of such proposed Competitive Bid Borrowing at a rate or rates of interest specified by such Lender in its sole discretion, by notifying the Agent (which shall give prompt notice thereof to the Borrower), before 9:30 A.M. (New York City time) on the date of such proposed Competitive Bid Borrowing, in the case of a Competitive Bid Borrowing consisting of Fixed Rate Advances and before 10:00 A.M. (New York City time) three Business Days before the date of such proposed Competitive Bid Borrowing, in the case of a Competitive Bid Borrowing consisting of LIBO Rate Advances, of the minimum amount and maximum amount of each Competitive Bid Advance which such Lender would be willing to make as part of such proposed Competitive Bid Borrowing (which amounts may, subject to the proviso to the first sentence of this Section 2.03(a), exceed such Lender's Commitment, if any), the rate or rates of interest therefor and such Lender's Applicable Lending Office with respect to such Competitive Bid Advance; provided that if the Agent in its capacity as a Lender shall, in its sole discretion, elect to make any such offer, it shall notify the Borrower of such offer at least 30 minutes before the time and on the date on which notice of such election is to be given to the Agent by the other Lenders. If any Lender shall elect not to make such an offer, such Lender shall so notify the Agent, before 10:00 A.M. (New York City time) on the date on which notice of such election is to be given to the Agent by the other Lenders, and such Lender shall not be obligated to, and shall not, make any Competitive Bid Advance as part of such Competitive Bid Borrowing; provided that the failure by any Lender to give such notice shall not cause such Lender to be obligated to make any Competitive Bid Advance as part of such proposed Competitive Bid Borrowing. (iii) The Borrower shall, in turn, before 10:30 A.M. (New York City time) on the date of such proposed Competitive Bid Borrowing, in the case of a Competitive Bid Borrowing consisting of Fixed Rate Advances and before 11:00 A.M. (New York City time) three Business Days before the date of such proposed Competitive Bid Borrowing, in the case of a Competitive Bid Borrowing consisting of LIBO Rate Advances, either: (x) cancel such Competitive Bid Borrowing by giving the Agent notice to that effect, or (y) accept one or more of the offers made by any Lender or Lenders pursuant to paragraph (ii) above, in its sole discretion, by giving notice to the Agent of the amount of each Competitive Bid Advance (which amount shall be equal to or greater than the minimum amount, and equal to or less than the maximum amount, notified to the Borrower by the Agent on behalf of such Lender for such Competitive Bid Advance pursuant to paragraph (ii) above) to be made by each Lender as part of such Competitive Bid Borrowing, and reject any remaining offers made by Lenders pursuant to paragraph (ii) above by giving the Agent notice to that effect. The Borrower shall accept the offers made by any Lender or Lenders to make Competitive Bid Advances in order of the lowest to the highest rates of interest offered by such Lenders. If two or more Lenders have offered the same interest rate, the amount to be borrowed at such interest rate will be allocated among such Lenders in proportion to the amount that each such Lender offered at such interest rate. (iv) If the Borrower notifies the Agent that such Competitive Bid Borrowing is cancelled pursuant to paragraph (iii)(x) above, the Agent shall give prompt notice thereof to the Lenders and such Competitive Bid Borrowing shall not be made. (v) If the Borrower accepts one or more of the offers made by any Lender or Lenders pursuant to paragraph (iii) (y) above, the Agent shall in turn promptly notify (A) each Lender that has made an offer as described in paragraph (ii) above, of the date and aggregate amount of such Competitive Bid Borrowing and whether or not any offer or offers made by such Lender pursuant to paragraph (ii) above have been accepted by the Borrower, (B) each Lender that is to make a Competitive Bid Advance as part of such Competitive Bid Borrowing, of the amount of each Competitive Bid Advance to be made by such Lender as part of such Competitive Bid Borrowing, and (C) each Lender that is to make a Competitive Bid Advance as part of such Competitive Bid Borrowing, upon receipt, that the Agent has received forms of documents appearing to fulfill the applicable (v) If the Borrower accepts one or more of the offers made by any Lender or Lenders pursuant to paragraph (iii) (y) above, the Agent shall in turn promptly notify (A) each Lender that has made an offer as described in paragraph (ii) above, of the date and aggregate amount of such Competitive Bid Borrowing and whether or not any offer or offers made by such Lender pursuant to paragraph (ii) above have been accepted by the Borrower, (B) each Lender that is to make a Competitive Bid Advance as part of such Competitive Bid Borrowing, of the amount of each Competitive Bid Advance to be made by such Lender as part of such Competitive Bid Borrowing, and (C) each Lender that is to make a Competitive Bid Advance as part of such Competitive Bid Borrowing, upon receipt, that the Agent has received forms of documents appearing to fulfill the applicable conditions set forth in Article III. Each Lender that is to make a Competitive Bid Advance as part of such Competitive Bid Borrowing shall, before 12:00 noon (New York City time) on the date of such Competitive Bid Borrowing specified in the notice received from the Agent pursuant to clause (A) of the preceding sentence or any later time when such Lender shall have received notice from the Agent pursuant to clause (C) of the preceding sentence, 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 portion of such Competitive Bid Borrowing. Upon fulfillment of the applicable conditions set forth in Article III and after receipt by the Agent of such funds, the Agent will make such funds available to the Borrower at the Agent's address referred to in Section 8.02. Promptly after each Competitive Bid Borrowing the Agent will notify each Lender of the amount of the Competitive Bid Borrowing, the consequent Competitive Bid Reduction and the dates upon which such Competitive Bid Reduction commenced and will terminate. (vi) If the Borrower notifies the Agent that it accepts one or more of the offers made by any Lender or Lenders pursuant to paragraph (iii)(y) above, such notice of acceptance shall be irrevocable and binding on the Borrower. 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 the related Notice of Competitive Bid Borrowing for such Competitive Bid Borrowing the applicable conditions set forth in Article III, 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 such Lender to fund the Competitive Bid Advance to be made by such Lender as part of such Competitive Bid Borrowing when such Competitive Bid Advance, as a result of such failure, is not made on such date. (b) Each Competitive Bid Borrowing shall be in an aggregate amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof and, following the making of each Competitive Bid Borrowing, the Borrower and each Lender shall be in compliance with the limitations set forth in the proviso to the first sentence of subsection (a) above. (c) Within the limits and on the conditions set forth in this Section 2.03, the Borrower may from time to time borrow under this Section 2.03, repay or prepay pursuant to subsection (d) below, and reborrow under this Section 2.03, provided that a Competitive Bid Borrowing shall not be made within three Business Days of the date of any other Competitive Bid Borrowing. (d) The Borrower shall repay to the Agent for the account of each Lender that has made a Competitive Bid Advance, on the maturity date of each Competitive Bid Advance (such maturity date being that specified by the Borrower for repayment of such Competitive Bid Advance in the related Notice of Competitive Bid Borrowing delivered pursuant to subsection (a)(i) above and provided in the Competitive Bid Note evidencing such Competitive Bid Advance), the then unpaid principal amount of such Competitive Bid Advance. The Borrower shall have no right to prepay any principal amount of any Competitive Bid Advance unless, and then only on the terms, specified by the Borrower for such Competitive Bid Advance in the related Notice of Competitive Bid Borrowing delivered pursuant to subsection (a)(i) above and set forth in the Competitive Bid Note evidencing such Competitive Bid Advance. (e) The Borrower shall pay interest on the unpaid principal amount of each Competitive Bid Advance from the date of such Competitive Bid Advance to the date the principal amount of such Competitive Bid Advance is repaid in full, at the rate of interest for such Competitive Bid Advance specified by the Lender making such Competitive Bid Advance in its notice with respect thereto delivered pursuant to subsection (a)(ii) above, such Competitive Bid Advance in its notice with respect thereto delivered pursuant to subsection (a)(ii) above, payable on the interest payment date or dates specified by the Borrower for such Competitive Bid Advance in the related Notice of Competitive Bid Borrowing delivered pursuant to subsection (a)(i) above, as provided in the Competitive Bid Note evidencing such Competitive Bid Advance. Upon the occurrence and during the continuance of an Event of Default, the Borrower shall pay interest on the amount of unpaid principal of and interest on each Competitive Bid Advance owing to a Lender, payable in arrears on the date or dates interest is payable thereon, at a rate per annum equal at all times to 2% per annum above the rate per annum required to be paid on such Competitive Bid Advance under the terms of the Competitive Bid Note evidencing such Competitive Bid Advance unless otherwise agreed in such Competitive Bid Note. (f) The indebtedness of the Borrower resulting from each Competitive Bid Advance made to the Borrower as part of a Competitive Bid Borrowing shall be evidenced by a separate Competitive Bid Note of the Borrower payable to the order of the Lender making such Competitive Bid Advance. (g) Upon delivery of each Notice of Competitive Bid Borrowing, the Borrower shall pay a non-refundable fee of $3,000 to the Agent for its own account. SECTION 2.04. Fees. (a) Facility Fee. The Borrower agrees to pay to the Agent for the account of each Lender (other than the Designated Bidders) a facility fee on the aggregate amount of such Lender's Commitment from the Effective Date in the case of each Initial Lender and from effective date specified in the Assignment and Acceptance pursuant to which it became a Lender in the case of each other Lender until the Maturity Date at a rate per annum equal to the Applicable Percentage in effect from time to time, payable in arrears quarterly on the last day of each March, June, September and December, commencing March 1998, and on the Maturity 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. SECTION 2.05. Termination or Reduction of the Commitments. (a) If the Borrower has not made the Term Loan Election at least 15 days prior to the Revolver Termination Date, the Commitments shall be automatically terminated on the Revolver Termination Date. If the Borrower has made the Term Loan Election in accordance with Section 2.06, from time to time after the Term Loan Conversion Date upon each prepayment of the Revolving Credit Advances, the aggregate Commitments of the Lenders under this Agreement shall be automatically and permanently reduced on a pro rata basis by an amount equal to the amount by which the aggregate Commitments of the Lenders under this Agreement immediately prior to such reduction exceeds the aggregate unpaid principal amount of the Revolving Credit Advances outstanding at such time. (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 and provided further that the aggregate amount of the Commitments of the Lenders shall not be reduced to an amount that is less than the aggregate principal amount of the Competitive Bid Advances then outstanding. SECTION 2.06. Repayment of Revolving Credit Advances; Term Loan Election. (a) The Borrower shall, subject to the next succeeding sentence, repay to the Agent for the ratable account of the Lenders on the Revolver Termination Date the aggregate principal amount of the Revolving Credit Advances then outstanding. (b) The Borrower may, at any time prior to the Revolver Termination Date and upon not less than 15 days' notice to the Agent, elect (the "Term Loan Election") to convert all of the Revolving Credit Advances outstanding on the date specified in such notice (the "Term Loan Conversion Date") into a term loan which the Borrower shall repay in full to the Agent for the ratable account of the Lenders on the Maturity Date; provided that no Default has occurred and is continuing on the date of notice of the Term Loan Election or on the Term Loan Conversion Date. SECTION 2.07. 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 SECTION 2.07. Interest on Revolving Credit Advances. (a) Scheduled Interest. The Borrower shall pay interest on the unpaid principal amount of each Revolving Credit Advance owing to each Lender from the date of such Revolving Credit Advance until such principal amount shall be paid in full, at the following rates per annum: (i) Base Rate Advances. During such periods as such Revolving Credit Advance is a Base Rate Advance, a rate per annum equal at all times to the sum of (x) the Base Rate in effect from time to time plus (y) the Applicable Margin in effect from time to time, payable in arrears quarterly on the last day of each March, June, September and December during such periods and on the date such Base Rate Advance shall be Converted or paid in full. (ii) Eurodollar Rate Advances. During such periods as such Revolving Credit Advance is a Eurodollar Rate Advance, a rate per annum equal at all times during each Interest Period for such Revolving Credit Advance to the sum of (x) the Eurodollar Rate for such Interest Period for such Revolving Credit Advance plus (y) the Applicable Margin in effect from time to time, payable in arrears on the last day of such Interest Period and, if such Interest Period has a duration of more than three months, on each day that occurs during such Interest Period every three months from the first day of such Interest Period and on the date such Eurodollar Rate Advance shall be Converted or paid in full. (b) Default Interest. Upon the occurrence and during the continuance of an Event of Default, the Borrower shall pay interest on (i) the unpaid principal amount of each Revolving Credit Advance owing to each Lender, payable in arrears on the dates referred to in clause (a)(i) or (a)(ii) above, at a rate per annum equal at all times to 2% per annum above the rate per annum required to be paid on such Revolving Credit Advance pursuant to clause (a)(i) or (a)(ii) above and (ii) to the fullest extent permitted by law, the amount of any interest, fee or other amount payable hereunder that is not paid when due, from the date such amount shall be due until such amount shall be paid in full, payable in arrears on the date such amount shall be paid in full and on demand, at a rate per annum equal at all times to 2% per annum above the rate per annum required to be paid on Base Rate Advances pursuant to clause (a)(i) above. SECTION 2.08. Interest Rate Determination. (a) Each Reference Bank agrees to furnish to the Agent timely information for the purpose of determining each Eurodollar Rate and each LIBO 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 2.07(a)(i) or (ii), and the rate, if any, furnished by each Reference Bank for the purpose of determining the interest rate under Section 2.07(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 Advances will not adequately reflect the cost to such Required Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such Interest Period, the Agent shall forthwith so notify the Borrower and the Lenders, whereupon (i) each Eurodollar Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into a Base Rate Advance, and (ii) the obligation of the Lenders to make, or to Convert Revolving Credit Advances into, Eurodollar Rate Advances shall be suspended until the Agent shall notify the Borrower and the Lenders that the circumstances causing such suspension no longer exist. (c) If the Borrower shall fail to select the duration of any Interest Period for any Eurodollar Rate Advances in accordance with the provisions contained in the definition of "Interest Period" in Section 1.01, the Agent will forthwith so notify the Borrower and the Lenders and such 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 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 (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 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 Advances into, Eurodollar Rate Advances shall be suspended. (f) If fewer than two Reference Banks furnish timely information to the Agent for determining the Eurodollar Rate or LIBO Rate for any Eurodollar Rate Advances or LIBO Rate Advances, as the case may be, (i) the Agent shall forthwith notify the Borrower and the Lenders that the interest rate cannot be determined for such Eurodollar Rate Advances or LIBO Rate Advances, as the case may be, (ii) with respect to Eurodollar Rate Advances, each such 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 LIBO 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 2.09. 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 2.08 and 2.12, Convert all Revolving Credit Advances of one Type comprising the same Borrowing into Revolving Credit Advances of the other Type; 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 Revolving Credit Borrowings than permitted under Section 2.02(b). Each such notice of a Conversion shall, within the restrictions specified above, specify (i) the date of such Conversion, (ii) the Revolving Credit Advances to be Converted, and (iii) if such Conversion is into Eurodollar Rate Advances, the duration of the initial Interest Period for each such Advance. Each notice of Conversion shall be irrevocable and binding on the Borrower. SECTION 2.10. Prepayments of Revolving Credit Advances. (a) Optional Prepayment. The Borrower may on any Business Day, upon notice given to the Agent not later than 11:00 A.M., (i) on the same day for Base Rate Advances and (ii) on the second Business Day prior to the prepayment in the case of Eurodollar Rate Advances stating the proposed date and aggregate principal amount of the prepayment, and if such notice is given the Borrower shall, prepay the outstanding principal amount of the Revolving Credit Advances comprising part of the same Revolving Credit Borrowing in whole or ratably in part, together with accrued interest to the date of such prepayment on the principal amount prepaid; provided, however, that (x) each partial prepayment shall be in an aggregate principal amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof and (y) in the event of any such prepayment of a Eurodollar Rate Advance, the Borrower shall be obligated to reimburse the Lenders in respect thereof pursuant to Section 8.04(c). (b) Mandatory Prepayment. The Borrower shall, upon five Business Days notice from the Agent given at the request or with the consent of the Required Lenders, prepay the aggregate principal amount outstanding plus all interest thereon and all other amounts payable hereunder or under the Notes, in the event that (i) any Person or two or more Persons acting in concert shall have acquired beneficial ownership (within the meaning of Rule 13d3 of the Securities and Exchange Commission under the Securities Exchange Act of 1934), directly or indirectly, of Voting Stock of the Parent (or other securities convertible into such Voting Stock) representing 20% or more of the combined voting power of all Voting Stock of the Parent; or (ii) any Person or two or more Persons acting in concert shall have acquired by contract or otherwise, or shall have entered into a contract or arrangement that, upon consummation, will result in its or their acquisition of the power to exercise, directly or indirectly, a controlling influence over the management or policies of the Parent. SECTION 2.11. Increased Costs. (a) If, due to either (i) the introduction of or any change in or in the interpretation of any law or regulation or (ii) the compliance with any guideline or request from any central bank or other governmental authority (whether or not having the force of law), there shall be any increase in the cost to any Lender of agreeing to make or making, funding or maintaining Eurodollar Rate Advances or LIBO Rate Advances (excluding for purposes of this Section 2.11 any such increased costs resulting from (i) Taxes or Other Taxes (as to which Section 2.14 shall govern) and (ii) changes in the basis of taxation of overall net income or overall gross income by the United States or by the foreign jurisdiction or state under the laws of which such Lender is organized or has its Applicable Lending Office or any political subdivision thereof), then the Borrower shall from time to time, upon demand by such Lender (with a copy of such demand to the Agent), pay to the Agent for the account of such Lender additional amounts sufficient to compensate such Lender for such increased cost. A certificate as to the amount of such increased cost, submitted to the Borrower and the Agent by such Lender, shall be conclusive and binding for all purposes, absent manifest error. (b) If any Lender determines that compliance with any law or regulation or any guideline or request from any central bank or other governmental authority (whether or not having the force of law) affects or would affect the amount of capital required or expected to be maintained by such Lender or any corporation controlling such Lender and that the amount of such capital is increased by or based upon the existence of such Lender's commitment to lend hereunder and other commitments of this type, then, upon demand by such Lender (with a copy of such demand to the Agent), the Borrower shall pay to the Agent for the account of such Lender, from time to time as specified by such Lender, additional amounts sufficient to compensate such Lender or such corporation in the light of such circumstances, to the extent that such Lender reasonably determines such increase in capital to be allocable to the existence of such Lender's commitment to lend hereunder. A certificate as to such amounts submitted to the Borrower and the Agent by such Lender shall be conclusive and binding for all purposes, absent manifest error. (c) In the event that a Lender demands payment from the Borrower for amounts owing pursuant to subsection (a) or (b) of this Section 2.11, 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 Notes held by such Lender in accordance with Section 8.07, provided, however, that (i) no Default shall have occurred and be continuing, (ii) the Borrower shall have satisfied all of its obligations in connection with the Loan Documents with respect to such Lender, and (iii) if such assignee is not a Lender, (A) such assignee is acceptable to the Agent and (B) the Borrower shall have paid the Agent a $3,000 administrative fee. SECTION 2.12. Illegality. Notwithstanding any other provision of this Agreement, if any Lender shall notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or any central bank or other governmental authority asserts that it is unlawful, for any Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or LIBO Rate Advances or to fund or maintain Eurodollar Rate Advances or LIBO Rate Advances hereunder, (i) each Eurodollar Rate Advance or LIBO Rate Advance, as the case may be, will automatically, upon such demand, Convert into a Base Rate Advance or an Advance that bears interest at the rate set forth in Section 2.07(a)(i), as the case may be, and (ii) the obligation of the Lenders to make Eurodollar Rate Advances or LIBO 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 2.13. 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. The Agent will promptly thereafter cause to be distributed like funds relating to the payment of principal or interest or facility fees ratably (other than amounts payable pursuant to Section 2.03, 2.11, 2.14 or 8.04(c)) to the Lenders for the account of their respective Applicable Lending Offices, and like funds relating to the payment of any other amount payable to any Lender to such Lender for the account of its Applicable Lending Office, in each case to be applied in accordance with the terms of this Agreement. Upon its acceptance of an Assignment and Acceptance and recording of the information contained therein in the Register pursuant to Section 8.07(c), from and after the effective date specified in such Assignment and Acceptance, the Agent shall make all payments hereunder and under the Notes in respect of the interest assigned thereby to the Lender assignee thereunder, and the parties to such Assignment and Acceptance shall make all appropriate adjustments in such payments for periods prior to such effective date directly between themselves. (b) The Borrower hereby authorizes each Lender, if and to the extent payment owed to such Lender is not made when due hereunder or under the Note held by such Lender, to charge from time to time against any or all of the Borrower's accounts with such Lender any amount so due. (c) All computations of interest based on the Base Rate shall be made by the Agent on the basis of a year of 365 or 366 days, as the case may be, and all computations of interest based on the Eurodollar Rate or the Federal Funds Rate and of facility 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 or facility fees are payable. Each determination by the Agent of an interest rate hereunder shall be conclusive and binding for all purposes, absent manifest error. (d) Whenever any payment hereunder or under the Notes shall be stated to be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of payment of interest or facility fee, as the case may be; provided, however, that, if such extension would cause payment of interest on or principal of Eurodollar Rate Advances or LIBO Rate Advances to be made in the next following calendar month, such payment shall be made on the next preceding Business Day. (e) Unless the Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Lenders hereunder that the Borrower will not make such payment in full, the Agent may assume that the Borrower has made such payment in full to the Agent on such date and the Agent may, in reliance upon such assumption, cause to be distributed to each Lender on such due date an amount equal to the amount then due such Lender. If and to the extent the Borrower shall not have so made such payment in full to the Agent, each Lender shall repay to the Agent forthwith on demand such amount distributed to such Lender together with interest thereon, for each day from the date such amount is distributed to such Lender until the date such Lender repays such amount to the Agent, at the Federal Funds Rate. SECTION 2.14. Taxes. (a) Any and all payments by the Borrower hereunder or under the Notes shall be made, in accordance with Section 2.13, free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto, excluding, in the case of each Lender and the Agent, taxes imposed on its overall net income, and franchise taxes imposed on it in lieu of net income taxes, by the jurisdiction under the laws of which such Lender or the Agent (as the case may be) is organized or any political subdivision thereof and, in the case of each Lender, taxes imposed on its overall net income, and franchise taxes imposed on it in lieu of net income taxes, by the jurisdiction of such Lender's Applicable Lending Office or any political subdivision thereof (all such non-excluded taxes, levies, imposts, deductions, charges, withholdings and liabilities in respect of payments hereunder or under the Notes being hereinafter referred to as "Taxes"). If the Borrower shall be required by law to deduct any Taxes from or in respect of any sum payable hereunder or under any Note to any Lender or the Agent, (i) the sum payable shall be increased as may be necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 2.14) such Lender or the Agent (as the case may be) receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable law. (b) In addition, 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 (b) In addition, 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, performing under, or otherwise with respect to, this Agreement or the Notes (hereinafter referred to as "Other Taxes"). (c) The Borrower shall indemnify each Lender and the Agent for the full amount of Taxes or Other Taxes (including, without limitation, any taxes imposed by any jurisdiction on amounts payable under this Section 2.14) imposed on or paid by such Lender or the Agent (as the case may be) and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto. This indemnification shall be made within 30 days from the date such Lender or the Agent (as the case may be) makes written demand therefor. (d) Within 30 days after the date of any payment of Taxes, the Borrower shall furnish to the Agent, at its address referred to in Section 8.02, the original or a certified copy of a receipt evidencing payment thereof. In the case of any payment hereunder or under the Notes by or on behalf of the Borrower through an account or branch outside the United States or by or on behalf of the Borrower by a payor that is not a United States person, if the Borrower determines that no Taxes are payable in respect thereof, the Borrower shall furnish, or shall cause such payor to furnish, to the Agent, at such address, an opinion of counsel acceptable to the Agent stating that such payment is exempt from Taxes. For purposes of this subsection (d) and subsection (e), the terms "United States" and "United States person" shall have the meanings specified in Section 7701 of the Internal Revenue Code. (e) Each Lender organized under the laws of a jurisdiction outside the United States, on or prior to the date of its execution and delivery of this Agreement in the case of each Initial Lender and on the date of the Assignment and Acceptance pursuant to which it becomes a Lender in the case of each other Lender, and from time to time thereafter as requested in writing by the Borrower (but only so long as such Lender remains lawfully able to do so), shall provide each of the Agent and the Borrower with two original Internal Revenue Service forms 1001 or 4224, as appropriate, or any successor or other form prescribed by the Internal Revenue Service, certifying that such Lender is exempt from or entitled to a reduced rate of United States withholding tax on payments pursuant to this Agreement or the Notes. If the forms provided by a Lender at the time such Lender first becomes a party to this Agreement indicates a United States interest withholding tax rate in excess of zero, withholding tax at such rate shall be considered excluded from Taxes unless and until such Lender provides the appropriate forms certifying that a lesser rate applies, whereupon withholding tax at such lesser rate only shall be considered excluded from Taxes for periods governed by such form; provided, however, that, if at the date of the Assignment and Acceptance pursuant to which a Lender assignee becomes a party to this Agreement, the Lender assignor was entitled to payments under subsection (a) in respect of United States withholding tax with respect to interest paid at such date, then, to such extent, the term Taxes shall include (in addition to withholding taxes that may be imposed in the future or other amounts otherwise includable in Taxes) United States withholding tax, if any, applicable with respect to the Lender assignee on such date. 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 1001 or 4224, 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. (f) For any period with respect to which a Lender has failed to provide the Borrower with the appropriate form described in Section 2.14(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 2.14(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. (g) In the event that a Lender demands payment from the Borrower for amounts owing pursuant to subsection (a) or (b) of this Section 2.14, 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 institution shall be an Eligible Assignee and shall assume the Commitments of such Lender and purchase the Notes held by such Lender in accordance with Section 8.07, provided, however, that (i) no Default shall have occurred and be continuing, (ii) the Borrower shall have satisfied all of its obligations in connection with the Loan Documents with respect to such Lender, and (iii) if such assignee is not a Lender, (A) such assignee is acceptable to the Agent and (B) the Borrower shall have paid the Agent a $3,000 administrative fee. SECTION 2.15. Sharing of Payments, Etc. If any Lender shall obtain any payment (whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise) on account of the Revolving Credit Advances owing to it (other than pursuant to Section 2.11, 2.14 or 8.04(c)) in excess of its ratable share of payments on account of the Revolving Credit Advances obtained by all the Lenders, such Lender shall forthwith purchase from the other Lenders such participations in the Revolving Credit Advances owing to them as shall be necessary to cause such purchasing Lender to share the excess payment ratably with each of them; provided, however, that if all or any portion of such excess payment is thereafter recovered from such purchasing Lender, such purchase from each Lender shall be rescinded and such 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 2.15 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 2.16. Extensions of Revolver Termination Date. No earlier than 45 days and no later than 30 days prior to the Revolver Termination Date in effect at any time, the Borrower may, by written notice to the Agent, request that such Revolver Termination Date be extended for a period of 364 days. Such request shall be irrevocable and binding upon the Borrower. The Agent shall promptly notify each Lender of such request. If a Lender agrees, in its individual and sole discretion, to so extend its Commitment (an "Extending Lender"), it shall deliver to the Agent a written notice of its agreement to do so no earlier than 30 days and no later than 20 days prior to such Revolver Termination Date and the Agent shall notify the Borrower of such Extending Lender's agreement to extend its Commitment no later than 15 days prior to such Revolver Termination Date. The Commitment of any Lender that fails to accept or respond to the Borrower's request for extension of the Revolver Termination Date (a "Declining Lender") shall be terminated on the Revolver Termination Date originally in effect (without regard to any extension by other Lenders) and on such Revolver Termination Date the Borrower shall pay in full the principal amount of all Advances owing to such Declining Lender, together with accrued interest thereon to the date of such payment of principal and all other amounts payable to such Declining Lender under this Agreement. The Agent shall promptly notify each Extending Lender of the aggregate Commitments of the Declining Lenders. The Extending Lenders, or any of them, may offer to increase their respective Commitments by an aggregate amount up to the aggregate amount of the Declining Lenders' Commitments and any such Extending Lender shall deliver to the Agent a notice of its offer to so increase its Commitment no later than 15 days prior to such Revolver Termination Date. To the extent of any shortfall in the aggregate amount of extended Commitments, the Borrower shall have the right to require any Declining Lender to assign in full its rights and obligations under this Agreement to an Eligible Assignee designated by the Borrower and acceptable to the Agent, that agrees to accept all of such rights and obligations (a "Replacement Lender"), provided that (i) such increase and/or such assignment is otherwise in compliance with Section 8.07, (ii) such Declining Lender receives payment in full of the principal amount of all Advances owing to such Declining Lender, together with accrued interest thereon to the date of such payment of principal and all other amounts payable to such Declining Lender under this Agreement, and (iii) any such increase shall be effective on the Revolver Termination Date in effect at the time the Borrower requests such extension and any such assignment shall be effective on the date specified by the Borrower and agreed to by the Replacement Lender and the Agent. If Extending Lenders and Replacement Lenders provide Commitments in an aggregate amount at least equal to 51% of the aggregate amount of the Commitments outstanding 30 days prior to the Revolver Termination Date in effect at the time the Borrower requests such extension, the Revolver Termination Date shall be extended by 364 days for such Extending Lenders. SECTION 2.17. Use of Proceeds. The proceeds of the Advances shall be available (and the Borrower agrees SECTION 2.17. Use of Proceeds. The proceeds of the Advances shall be available (and the Borrower agrees that it shall use such proceeds) solely for general corporate purposes of the Borrower and its Subsidiaries. ARTICLE III CONDITIONS TO EFFECTIVENESS AND LENDING SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01 and 2.03. Sections 2.01 and 2.03 of this Agreement shall become effective on and as of the first date (the "Effective Date") on which the following conditions precedent have been satisfied: (a) There shall have occurred no Material Adverse Change, in the case of the Parent and its Subsidiaries since December 31, 1996, and in the case of the Borrower, since the date of its formation. (b) There shall exist no action, suit, investigation, litigation or proceeding affecting either Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect other than the matters described 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 shall have been no adverse change in the status, or financial effect on any Loan Party or any of its Subsidiaries of the Disclosed Litigation from that described in the SEC Reports. (c) Nothing shall have come to the attention of the Lenders during the course of their due diligence investigation to lead them to believe that the Information Memorandum was or has become misleading, incorrect or incomplete in any material respect; without limiting the generality of the foregoing, 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 each Loan Party and its Subsidiaries as they shall have requested. (d) All governmental and third party consents 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 Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated by the Loan Documents. (e) The Borrower shall have notified each Lender and the Agent in writing as to the proposed Effective Date. (f) The Borrower shall have paid all accrued fees and expenses of the Agent and the Lenders. (g) On the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Borrower, dated the Effective Date, stating 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. (iii) The Parent shall have delivered a certificate, substantially in form of Exhibit E hereto, signed on behalf of the Parent by a Financial Officer of the Parent. (h) 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 the Revolving Credit Notes) in sufficient copies for each Lender: (i) The Revolving Credit Notes to the order of the Lenders, respectively. (h) 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 the Revolving Credit Notes) in sufficient copies for each Lender: (i) The Revolving Credit Notes to the order of the Lenders, respectively. (ii) Certified copies of the resolutions of the Board of Directors of each Loan Party approving each Loan Document to which it is a party, and of all documents evidencing other -necessary corporate action and governmental approvals, if any, with respect to each Loan Document to which it is a party. (iii) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of each Loan Party authorized to sign each Loan Document to which it is a party and the other documents to be delivered hereunder or thereunder. (iv) An unaudited Consolidated balance sheet of the Borrower and its Subsidiaries and the related statements of income and cash flows of the Borrower and its Subsidiaries, as of December 31, 1996 and as filed by the Parent with the Securities and Exchange Commission on Form U-3A-2. (v) A support agreement in substantially the form of Exhibit F (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Support Agreement"), duly executed by each Loan Party. (vi) A collateral assignment agreement in substantially the form of Exhibit G (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Collateral Assignment Agreement"), duly executed by the Borrower, together with: (A) acknowledgment copies or stamped receipt copies of proper financing statements, duly filed on or before the Effective Date under the Uniform Commercial Code of all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Support Agreement and the Collateral Assignment Agreement, covering the Assigned Rights described in the Support Agreement and the Collateral Assignment Agreement, and (B) completed requests for information, dated on or before the Effective Date, listing the financing statements referred to in clause (A) above and all other effective financing statements filed in the jurisdictions referred to in clause (A) above that name the Borrower as debtor, together with copies of such other financing statements. (vii) A favorable opinion of C.C. Nern, General Counsel of the Parent and the Borrower, substantially in the form of Exhibit H hereto and as to such other matters as any Lender through the Agent may reasonably request. (viii) A favorable opinion of Shearman & Sterling, counsel for the Agent, in form and substance satisfactory to the Agent. (ix) The Agent shall have received on or before the Effective Date an executed copy of the Assignment Agreement, in form and substance satisfactory to the Agent. SECTION 3.02. Conditions Precedent to Each Revolving Credit Borrowing. The obligation of each Lender to make a Revolving Credit Advance on the occasion of each Revolving Credit Borrowing shall be subject to the conditions precedent that the Effective Date shall have occurred and on the date of such Revolving Credit Borrowing (a) the following statements shall be true (and each of the giving of the applicable Notice of Revolving Credit Borrowing and the acceptance by the Borrower of the proceeds of such Revolving Credit Borrowing shall constitute a representation and warranty by the Borrower that on the date of such Borrowing such statements are true): (i) the representations and warranties contained in Section 4.01 are correct on and as of the date of such Revolving Credit Borrowing, before and after giving effect to such Revolving Credit Borrowing and to the application of the proceeds therefrom, as though made on and as of such date, and subject to the conditions precedent that the Effective Date shall have occurred and on the date of such Revolving Credit Borrowing (a) the following statements shall be true (and each of the giving of the applicable Notice of Revolving Credit Borrowing and the acceptance by the Borrower of the proceeds of such Revolving Credit Borrowing shall constitute a representation and warranty by the Borrower that on the date of such Borrowing such statements are true): (i) the representations and warranties contained in Section 4.01 are correct on and as of the date of such Revolving Credit Borrowing, before and after giving effect to such Revolving Credit Borrowing and to the application of the proceeds therefrom, as though made on and as of such date, and (ii) no event has occurred and is continuing, or would result from such Revolving Credit Borrowing or from the application of the proceeds therefrom, that constitutes a Default; 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. Conditions Precedent to Each Competitive Bid Borrowing. The obligation of each Lender that is to make a Competitive Bid Advance on the occasion of a Competitive Bid Borrowing to make such Competitive Bid Advance as part of such Competitive Bid Borrowing is subject to the conditions precedent that (i) the Agent shall have received the written confirmatory Notice of Competitive Bid Borrowing with respect thereto, (ii) on or before the date of such Competitive Bid Borrowing, but prior to such Competitive Bid Borrowing, the Agent shall have received a Competitive Bid Note payable to the order of such Lender for each of the one or more Competitive Bid Advances to be made by such Lender as part of such Competitive Bid Borrowing, in a principal amount equal to the principal amount of the Competitive Bid Advance to be evidenced thereby and otherwise on such terms as were agreed to for such Competitive Bid Advance in accordance with Section 2.03, and (iii) on the date of such Competitive Bid Borrowing the following statements shall be true (and each of the giving of the applicable Notice of Competitive Bid Borrowing and the acceptance by the Borrower of the proceeds of such Competitive Bid Borrowing shall constitute a representation and warranty by the Borrower that on the date of such Competitive Bid Borrowing such statements are true): (a) the representations and warranties contained in Section 4.01 are correct on and as of the date of such Competitive Bid Borrowing, before and after giving effect to such Competitive Bid Borrowing and to the application of the proceeds therefrom, as though made on and as of such date, (b) no event has occurred and is continuing, or would result from such Competitive Bid Borrowing or from the application of the proceeds therefrom, that constitutes a Default, and (c) no event has occurred and no circumstance exists as a result of which the information concerning either Loan Party that has been provided to the Agent and each Lender by either Loan Party in connection herewith would include an untrue statement of a material fact or omit to state any material fact or any fact necessary to make the statements contained therein, in the light of the circumstances under which they were made, not misleading. SECTION 3.04. 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: 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 State of Michigan. (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 such Loan Party'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 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 this Agreement, the Notes or any other Loan Document to which it is a party. (d) This Agreement has been, and each of the Notes and each of the other Loan Documents to which it is a party when delivered hereunder will have been, duly executed and delivered by the Borrower. This Agreement is, and each of the Notes and each of the other Loan Documents to which it is a party 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 Consolidated balance sheet of the Parent and its Subsidiaries as at December 31, 1996, and the related Consolidated statements of income and cash flows of the Parent and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, independent public accountants, and the Consolidated balance sheet of the Parent and its Subsidiaries as at September 30, 1997, and the related Consolidated statements of income and cash flows of the Parent and its Subsidiaries for the nine months then ended, duly certified by a Financial Officer of the Parent, copies of which have been furnished to each Lender, and the unaudited Consolidated balance sheet of the Borrower and its Subsidiaries as of December 31, 1996 and as filed by the Parent with the Securities and Exchange Commission on Form U-3A-2 fairly present, subject in the case of said balance sheet as at September 30, 1997, and said statements of income and cash flows for the nine months then ended, to year-end audit adjustments, the Consolidated financial condition of the Parent and its Subsidiaries as at such dates all in accordance with generally accepted accounting principles consistently applied. Since December 31, 1996, in the case of the Parent and its Subsidiaries, and since the dates of its formation, in the case of the Borrower, there has been no Material Adverse Change, except as shall have been disclosed 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 Subsidiaries before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect (other than the Disclosed Litigation) or (ii) purports to affect the legality, validity or enforceability of this Agreement, any Note or any other Loan Document or the consummation of the transactions contemplated hereby and there has been no adverse change in the status of any Disclosed Litigation, or its financial effect on any Loan Party or any of its Subsidiaries from that described in the SEC Reports. (g) The operations and properties of the Borrower and each of its 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 obligations or costs, and no circumstances exist that could be reasonably likely to (i) form the basis of an Environmental Action against the Borrower or any of its 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 (g) The operations and properties of the Borrower and each of its 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 obligations or costs, and no circumstances exist that could be reasonably likely to (i) form the basis of an Environmental Action against the Borrower or any of its Subsidiaries or any of their properties that could have a Material Adverse Effect or (ii) cause any such property to be subject to any restrictions on ownership, occupancy, use or transferability under any Environmental Law that could have a Material Adverse Effect. (h) No ERISA Event has occurred or is reasonably expected to occur with respect to any Plan. (i) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) for each Plan, copies of which have been filed with the Internal Revenue Service, is complete and accurate and fairly presents the funding status of such Plan, and since the date of such Schedule B there has been no material adverse change in such funding status. (j) Neither the Borrower nor any ERISA Affiliate has incurred or is reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan. (k) Neither the Borrower nor any ERISA Affiliate has been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or has been terminated, within the meaning of Title IV of ERISA, and no such Multiemployer Plan is reasonably expected to be in reorganization or to be terminated, within the meaning of Title IV of ERISA. (l) Except as set forth in the financial statements referred to in this Section 4.01, 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 Advance will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock. (n) Neither the Borrower nor any of its Subsidiaries is, or after the making of any Advance or the application of the proceeds or repayment thereof, or the consummation of any of the other transactions contemplated hereby, will be, an "investment company", or an "affiliated person" of, or "promoter" or "principal underwriter" for, an "investment company" (within the meaning of the Investment Company Act of 1940, as amended). (o) The Borrower is a "subsidiary company" of a "holding company" (within the meaning of the Public Utility Holding Company Act of 1935, as amended) which holding company is exempt from being required to seek approval to perform its obligations under the Loan Documents pursuant to Rule 2 of the Rules and Regulations promulgated pursuant to the Public Utility Holding Company Act of 1935, as amended. (p) The Support Agreement (as it may be amended, supplemented, terminated or otherwise modified in accordance with its terms) is in full force and effect in accordance with its terms. ARTICLE V COVENANTS OF THE BORROWER SECTION 5.01. Affirmative Covenants. So long as any Advance 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, in all material respects, with all applicable laws, rules, regulations and orders, such compliance to include, without limitation, compliance with ERISA and Environmental Laws. ARTICLE V COVENANTS OF THE BORROWER SECTION 5.01. Affirmative Covenants. So long as any Advance 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, in all material respects, with all applicable laws, rules, regulations and orders, such compliance to include, without limitation, compliance with ERISA and Environmental Laws. (b) Payment of Taxes, Etc. Pay and discharge, and cause each of its Subsidiaries to pay and discharge, before the same shall become delinquent, (i) all taxes, assessments and governmental charges or levies imposed upon it or upon its property and (ii) all lawful claims that, if unpaid, might by law become a Lien upon its property; 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 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 may consummate any merger or consolidation permitted under Section 5.02(b) and provided further 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 or the Lenders. (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 Subsidiaries, and to discuss the affairs, finances and accounts of the Borrower and any of its 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 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, all of its properties that are used or useful in the conduct of its business in good working order and condition, ordinary wear and tear excepted. (h) Reporting Requirements. Furnish to the Lenders: (i) as soon as available and in any event within 45 days after the end of each of the first three quarters of each fiscal year of the Parent, Consolidated balance sheet of the Parent and its Consolidated Subsidiaries as of the end of such quarter and Consolidated statements of income and cash flows of the Parent 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 90 days after the end of each fiscal year of the Parent, a copy of the annual report to Shareholders for such year for the Parent and its Consolidated Subsidiaries, containing the Consolidated balance sheet of the Parent and its Consolidated Subsidiaries as of the end of such fiscal year and (ii) as soon as available and in any event within 90 days after the end of each fiscal year of the Parent, a copy of the annual report to Shareholders for such year for the Parent and its Consolidated Subsidiaries, containing the Consolidated balance sheet of the Parent and its Consolidated Subsidiaries as of the end of such fiscal year and Consolidated statements of income and cash flows of the Parent and its Subsidiaries for such fiscal year, in each case accompanied by (A) an opinion by Deloitte & Touche LLP or other independent public accountants acceptable to the Required Lenders and (B) the report by the Parent filed with the Securities and Exchange Commission on Form U-3A-2 for such fiscal year, containing the Consolidating balance sheet of the Borrower and its Subsidiaries as of the end of such fiscal year and Consolidating statements of income and Consolidating statements of retained earnings of the Borrower and its Subsidiaries for such fiscal year, in each case, having been prepared in accordance with generally accepted accounting principles consistent with those applied in the preparation of the financial statements referred to in Section 4.01; (iii) as soon as available and in any event within 45 days after the end of each of the first three quarters of each fiscal year of the Borrower, unaudited Consolidated balance sheets of the Borrower and its Subsidiaries as of the end of such quarter and unaudited 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, duly certified (subject to year-end audit adjustments) by a Financial Officer of the Borrower as having been prepared in accordance with generally accepted accounting principles in each case, having been prepared in accordance with generally accepted accounting principles consistent with those applied in the preparation of the financial statements referred to in Section 4.01; (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) promptly after the sending or filing thereof copies of all reports and registration statements that the Borrower or any Subsidiary files with the Securities and Exchange Commission or any national securities exchange; (vi) promptly after the commencement thereof, notice of all actions and proceedings before any court, governmental agency or arbitrator affecting the Borrower or any of its Subsidiaries of the type described in Section 4.01(f); and (vii) such other information respecting the Borrower or any of its Subsidiaries as any Lender through the Agent may from time to time reasonably request. SECTION 5.02. Negative Covenants. So long as any Advance 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 of its Subsidiaries to create or suffer to exist, any Lien on or with respect to any of its properties, whether now owned or hereafter acquired, or assign, or permit any of its Subsidiaries to assign, any right to receive income, other than: (i) Permitted Liens, (ii) purchase money Liens upon or in any real property or equipment acquired or held by the Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or equipment or to secure Debt incurred solely for the purpose of financing the acquisition of such property or equipment, or Liens existing on such property or equipment at the time of its acquisition (other than any such Liens created in contemplation of such acquisition that were not incurred to finance the acquisition of such property) or extensions, renewals or replacements of any of the foregoing for the same or a lesser amount, provided, however, that no such Lien shall extend to or cover any properties of any character other than the real property or equipment being acquired, and no such extension, renewal or replacement shall extend to or cover any properties not theretofore subject to the Lien being extended, renewed or replaced, provided further that the aggregate principal amount of the indebtedness secured by the Liens referred to in this clause (ii) shall not exceed $20,000,000 at any time outstanding, equipment at the time of its acquisition (other than any such Liens created in contemplation of such acquisition that were not incurred to finance the acquisition of such property) or extensions, renewals or replacements of any of the foregoing for the same or a lesser amount, provided, however, that no such Lien shall extend to or cover any properties of any character other than the real property or equipment being acquired, and no such extension, renewal or replacement shall extend to or cover any properties not theretofore subject to the Lien being extended, renewed or replaced, provided further that the aggregate principal amount of the indebtedness secured by the Liens referred to in this clause (ii) shall not exceed $20,000,000 at any time outstanding, (iii) the Liens existing on the Effective Date and described on Schedule 5.02(a) hereto, (iv) Liens on property of a Person existing at the time such Person is merged into or consolidated with the Borrower or any Subsidiary of the Borrower or becomes a Subsidiary of the Borrower; provided that such Liens were not created in contemplation of such merger, consolidation or acquisition and do not extend to any assets other than those of the Person so merged into or consolidated with the Borrower or such Subsidiary or acquired by the Borrower or such Subsidiary, (v) other Liens securing Debt in an aggregate principal amount not to exceed $20,000,000 at any time outstanding, and (vi) the replacement, extension or renewal of any Lien permitted by clause (iii) or (iv) above upon or in the same property theretofore subject thereto or the replacement, extension or renewal (without increase in the amount or change in any direct or contingent obligor) of the Debt secured thereby. (b) Mergers, Etc. Merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to, any Person, or permit any of its Subsidiaries to do so, except that any Subsidiary of the Borrower may merge or consolidate with or into any other Subsidiary of the Borrower, and except that any Subsidiary of the Borrower may merge into or dispose of assets to the Borrower, provided, in each case, that no Default shall have occurred and be continuing at the time of such proposed transaction or would result therefrom. (c) Change in Nature of Business. Make any material change in the nature of its business as carried on at the date hereof. (d) Accounting Changes. Make or permit, or permit any of its Subsidiaries to make or permit, any change in accounting policies or reporting practices, except as required or permitted by 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 Advance when the same becomes due and payable; or the Borrower shall fail to pay any interest on any Advance or make any other payment of fees or other amounts payable under this Agreement or any Note within three Business Days after the same becomes due and payable; or (b) Any representation or warranty made by the Borrower herein or 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 2.10 (b), 5.01(d), (e) or (h) or 5.02 or in the Collateral Assignment Agreement, (ii) the Parent shall fail to perform or observe any term, covenant or agreement contained in the Support Agreement, or (iii) the Borrower shall fail to perform or observe any other term, covenant or agreement contained in any Loan Document on its part to be (b) Any representation or warranty made by the Borrower herein or 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 2.10 (b), 5.01(d), (e) or (h) or 5.02 or in the Collateral Assignment Agreement, (ii) the Parent shall fail to perform or observe any term, covenant or agreement contained in the Support Agreement, or (iii) 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 10 days after written notice thereof shall have been given to the Borrower by the Agent or any Lender; or (d) Either Loan Party or any of its 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 $10,000,000 in the aggregate (but excluding Debt outstanding hereunder and Nonrecourse Debt) of such Loan Party or such Subsidiary (as the case may be), when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other event shall occur or condition shall exist under any agreement or instrument relating to any such Debt and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable, or required to be prepaid or redeemed (other than by a regularly scheduled required prepayment or redemption), purchased or defeased, or an offer to prepay, redeem, purchase or defease such Debt shall be required to be made, in each case prior to the stated maturity thereof; or (e) Either Loan Party or DECO 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 either Loan Party or any of its 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 30 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 either Loan Party or any of its 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 in excess of $10,000,000 shall be rendered against either Loan Party or any of its 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 10 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) Any non-monetary judgment or order shall be rendered against either Loan Party or any of its Subsidiaries that could be reasonably expected to have a Material Adverse Effect, and there shall be any period of 10 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 (h) The Parent shall at any time cease to hold 100% of the Voting Stock of the Borrower or DECO; or (i) 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 $10,000,000 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 (j) The Parent and its Subsidiaries, on a Consolidated basis, shall at any time cease to: (i) 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 $10,000,000 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 (j) The Parent and its Subsidiaries, on a Consolidated basis, shall at any time cease to: (i) Maintain a ratio of Consolidated EBITDA to cash interest payable on all Debt (excluding, (A) such Nonrecourse Debt of their own and of their Subsidiaries and Affiliates as would be listed as such in the financial statements of the Parent of the kind delivered pursuant to Section 5.01(h)(ii) and (iii) and (B) the Junior Subordinated Debentures) of not less than 2:1 for each period of four consecutive fiscal quarters ending on the last day of September, December, March and June of each year, or (ii) Maintain a ratio of Consolidated Debt (excluding, (A) such Nonrecourse Debt of their own and of their Subsidiaries as would be listed in the financial statements of the Parent and (B) the Junior Subordinated Debentures) to Capitalization of not greater than .65:1; or (k) 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 any Loan Party to it, or any such Loan Party 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 to make Advances to be terminated, whereupon the same shall forthwith terminate, and (ii) shall at the request, or may with the consent, of the Required Lenders, by notice to the Borrower, declare the Notes, all interest thereon and all other amounts payable under this Agreement to be forthwith due and payable, whereupon the Notes, all such interest and all such amounts shall become and be forthwith due and payable, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by the Borrower; provided, however, that in the event of an actual or deemed entry of an order for relief with respect to the Borrower under the Federal Bankruptcy Code, (A) the obligation of each Lender to make Advances shall automatically be terminated and (B) the Notes, all such interest and all such amounts shall automatically become and be due and payable, without presentment, demand, protest or any notice of any kind, all of which are hereby expressly waived by the Borrower. ARTICLE VII THE AGENT SECTION 7.01. Authorization and Action. Each Lender hereby appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement as are delegated to the Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto. As to any matters not expressly provided for by this Agreement (including, without limitation, enforcement or collection of the Notes), 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, and such instructions shall be binding upon all Lenders and all holders of Notes; provided, however, that the Agent shall not be required to take any action that exposes the Agent to personal liability or that is contrary to this Agreement or applicable law. The Agent agrees to give to each Lender prompt notice of each notice given to it by the Borrower pursuant to the terms of this Agreement. SECTION 7.02. Agent's Reliance, Etc. Neither the Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or omitted to be taken by it or them under or in connection with this Agreement, except for its or their own gross negligence or willful misconduct. Without limitation of the generality of the foregoing, the Agent: (i) may treat the payee of any Note as the holder thereof until the Agent receives and accepts an Assignment and Acceptance entered into by the Lender that is the payee limitation of the generality of the foregoing, the Agent: (i) may treat the payee of any Note as the holder thereof until the Agent receives and accepts an Assignment and Acceptance entered into by the Lender that is the payee of such Note, 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 Advances made by it and the 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. SECTION 7.05. Indemnification. The Lenders (other than the Designated Bidders) agree to indemnify the Agent (to the extent not reimbursed by the Borrower), ratably according to the respective principal amounts of the Revolving Credit Notes then held by each of them (or if no Revolving Credit Notes are at the time outstanding or if any Revolving Credit Notes are held by 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 (other than the Designated Bidders) agrees to reimburse the Agent promptly upon demand for its ratable share of any out-of-pocket expenses (including counsel fees) incurred by the Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, any Loan Document, to the extent that the Agent is not reimbursed for such expenses by the Borrower. SECTION 7.06. Successor Agent. The Agent may resign at any time by giving written notice thereof to the Lenders and the Borrower and may be removed at any time with or without cause by the Required Lenders. Upon any such resignation or removal, the Required Lenders shall have the right to appoint a successor Agent. If no successor Agent shall have been so appointed by the Required Lenders, and shall have accepted such appointment, within 30 days after the retiring Agent's giving of notice of resignation or the Required Lenders' removal of the retiring Agent, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent, which shall be a commercial bank organized under the laws of the United States of America or of any State thereof and having a combined capital and surplus of at least $50,000,000. Upon the acceptance of any appointment as Agent hereunder by a successor Agent, such successor Agent shall thereupon succeed to and become vested with all the rights, powers, discretion, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations under this Agreement. After any retiring Agent's resignation or removal hereunder as Agent, the provisions of this Article VII shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Agent under this Agreement. ARTICLE VIII MISCELLANEOUS SECTION 8.01. Amendments, Etc. No amendment or waiver of any provision of this Agreement or the Revolving Credit 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 (other than the Designated Bidders), do any of the following: (a) waive any of the conditions specified in Section 3.01, (b) increase the Commitments of the Lenders or subject the Lenders to any additional obligations, (c) reduce the principal of, or interest on, the Revolving Credit Notes or any fees or other amounts payable hereunder, (d) postpone any date fixed for any payment of principal of, or interest on, the Revolving Credit Notes or any fees or other amounts payable hereunder, (e) change the percentage of the Commitments or of the aggregate unpaid principal amount of the Revolving Credit Notes, or the number of Lenders, that shall be required for the Lenders or any of them to take any action hereunder or (f) 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. SECTION 8.02. Notices, Etc. All notices and other communications provided for hereunder shall be in writing (including telecopier, telegraphic or telex communication) and mailed, telecopied, telegraphed, telexed or delivered, if to the Borrower, at its address at 200 Second Avenue, Detroit, MI 48226, Attention: Christopher C. Arvani; if to any Initial Lender, at its Domestic Lending Office specified opposite its name on Schedule I hereto; if to any other Lender, at its Domestic Lending Office specified in the Assignment and Acceptance pursuant to which it became a Lender; and if to the Agent, at its address at One Court Square, Long Island City, NY 11120, Attention: Shawn Bernard; or, as to the Borrower or the Agent, at such other address as shall be designated by such party in a written notice to the other parties and, as to each other party, at such other address as shall be designated by such party in a written notice to the Borrower and the Agent. All such notices and communications shall, when mailed, telecopied, telegraphed or telexed, be effective when deposited in the mails, telecopied, delivered to the telegraph company or confirmed by telex answerback, respectively, except that notices and communications to the Agent pursuant to Article II, III or VII shall not be effective until received by the Agent. Delivery by telecopier of an executed counterpart of any amendment or waiver of any provision of this Agreement or the Notes or of any Exhibit hereto to be executed and delivered hereunder shall be effective as delivery of a manually executed counterpart thereof. SECTION 8.03. No Waiver; Remedies. No failure on the part of any Lender or the Agent to exercise, and no delay in exercising, any right hereunder or under any Note shall operate as a waiver thereof; nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law. SECTION 8.04. Costs and Expenses. (a) The Borrower agrees to pay on demand all reasonable costs and reasonable expenses of the Agent in connection with the preparation, execution, delivery, administration, modification and amendment of this Agreement, the Notes, each other 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, other documents to be delivered hereunder and thereunder, including, without limitation, (A) all due diligence, syndication (including printing, distribution and bank meetings), transportation, computer, duplication, appraisal, consultant, and audit expenses and (B) the reasonable fees and reasonable expenses of counsel for the Agent with respect thereto and with respect to advising the Agent as to its rights and responsibilities under the Loan Documents. The Borrower further agrees to pay on demand all reasonable costs and reasonable expenses of the Agent and the Lenders, if any (including, without limitation, reasonable internal and external counsel fees and expenses, provided such fees and expenses are not duplicative), in connection with the enforcement (whether through negotiations, legal proceedings or otherwise) of this Agreement, the Notes and the other documents to be delivered hereunder, including, without limitation, reasonable fees and expenses of counsel for the Agent and each Lender in connection with the enforcement of rights under this Section 8.04(a). (b) The Borrower agrees to indemnify, to the extent legally permissible, and hold harmless the Agent and each Lender and each of their Affiliates and their officers, directors, employees, agents and advisors (each, an "Indemnified Party") from and against any and all claims, damages, losses, liabilities and expenses (including, without limitation, reasonable fees and expenses of counsel) that may be incurred by or asserted or awarded against any Indemnified Party, in each case arising out of or in connection with or by reason of, or in connection with the preparation for a defense of, any investigation, litigation or proceeding arising out of, related to or in connection with (i) the Notes, this Agreement, the other Loan Documents any of the transactions contemplated herein or therein or the actual or proposed use of the proceeds of the Advances or (ii) the actual or alleged presence of Hazardous Materials on any property of the Borrower or any of its Subsidiaries or any Environmental Action relating in any way to the Borrower or any of its Subsidiaries, in each case whether or not such investigation, litigation or proceeding is brought 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. The Borrower also agrees not to assert any claim against the Agent, any Lender, any of their Affiliates, or any of their respective directors, officers, employees, attorneys and agents, on any theory of liability, for special, indirect, consequential or punitive damages arising out of or otherwise relating to the Notes, this Agreement, the other Loan Documents any of the transactions contemplated herein or therein or the actual or proposed use of the proceeds of the Advances. (c) If any payment of principal of, or Conversion of, any Eurodollar Rate Advance or LIBO 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 Advance, as a result of a payment or Conversion pursuant to Section 2.08(d) or (e), 2.10 or 2.12, acceleration of the maturity of the Notes 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 Advance. (d) Without prejudice to the survival of any other agreement of the Borrower hereunder, the agreements and obligations of each Loan Party contained in Sections 2.11, 2.14 and 8.04 shall survive the payment in full of principal, interest and all other amounts payable hereunder and under the Notes. SECTION 8.05. Right of Set-off. Upon (i) the occurrence and during the continuance of any Event of Default and (ii) the making of the request or the granting of the consent specified by Section 6.01 to authorize the Agent to declare the Notes due and payable pursuant to the provisions of Section 6.01, each Lender and each of its Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other indebtedness at any time owing by such Lender or such Affiliate to or for the credit or the account of either Loan Party against any and all of the obligations of either Loan Party now or hereafter existing under the Loan Documents Agreement and the Note held by such Lender, whether or not such Lender shall have made any demand under this Agreement or such Note and although such obligations may be unmatured. Each Lender agrees promptly to notify such Loan Party 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 and its Affiliates under this Section are in addition to other rights and remedies (including, without limitation, other rights of set-off) that such Lender and its Affiliates may have. SECTION 8.06. Binding Effect. This Agreement shall become effective (other than Sections 2.01 and 2.03, which shall only become effective upon satisfaction of the conditions precedent set forth in Section 3.01) when it shall have been executed by the Borrower and the Agent and when the Agent shall have been notified by each Initial Lender that such Initial Lender has executed it and thereafter shall be binding upon and inure to the benefit of the Borrower, the Agent and each Lender and their respective successors and assigns, except that the Borrower shall not have the right to assign its rights hereunder or any interest herein without the prior written consent of the Lenders. SECTION 8.07. Assignments, Designations and Participations. (a) Each Lender (other than the Designated Bidders) may assign to one or more Persons all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, the Revolving Credit Advances owing to it and the Revolving Credit Note or Notes held by it); provided, however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all rights and obligations under this Agreement (other than any right to make Competitive Bid Advances, Competitive Bid Advances owing to it and Competitive Bid Notes), (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender or an assignment of all of a Lender's rights and obligations under this Agreement, the amount of the Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 or an integral multiple of $1,000,000 in excess thereof, (iii) each such assignment shall be to an Eligible Assignee, and (iv) the parties to each such assignment shall execute and deliver to the Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Revolving Credit Note subject to such assignment and a processing and recordation fee of $3,000. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto). (b) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other instrument or document furnished pursuant hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take such such notice shall not affect the validity of such set-off and application. The rights of each Lender and its Affiliates under this Section are in addition to other rights and remedies (including, without limitation, other rights of set-off) that such Lender and its Affiliates may have. SECTION 8.06. Binding Effect. This Agreement shall become effective (other than Sections 2.01 and 2.03, which shall only become effective upon satisfaction of the conditions precedent set forth in Section 3.01) when it shall have been executed by the Borrower and the Agent and when the Agent shall have been notified by each Initial Lender that such Initial Lender has executed it and thereafter shall be binding upon and inure to the benefit of the Borrower, the Agent and each Lender and their respective successors and assigns, except that the Borrower shall not have the right to assign its rights hereunder or any interest herein without the prior written consent of the Lenders. SECTION 8.07. Assignments, Designations and Participations. (a) Each Lender (other than the Designated Bidders) may assign to one or more Persons all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, the Revolving Credit Advances owing to it and the Revolving Credit Note or Notes held by it); provided, however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all rights and obligations under this Agreement (other than any right to make Competitive Bid Advances, Competitive Bid Advances owing to it and Competitive Bid Notes), (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender or an assignment of all of a Lender's rights and obligations under this Agreement, the amount of the Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 or an integral multiple of $1,000,000 in excess thereof, (iii) each such assignment shall be to an Eligible Assignee, and (iv) the parties to each such assignment shall execute and deliver to the Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Revolving Credit Note subject to such assignment and a processing and recordation fee of $3,000. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto). (b) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other instrument or document furnished pursuant hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement as are delegated to the Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender. (c) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, together with any Revolving Credit Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower. Within five Business Days after its receipt of such notice, the Borrower, at its own expense, shall execute and deliver to the Agent in exchange for the surrendered Revolving Credit Note a new Note to the order of such Eligible Assignee in an amount equal to the Commitment assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Commitment hereunder, a new Revolving Credit Note to the order of the assigning Lender in an amount equal to the Commitment retained by it hereunder. Such new Revolving Credit Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Revolving Credit Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A-1 hereto. (d) Each Lender (other than the Designated Bidders) may designate one or more banks or other entities to have a right to make Competitive Bid Advances as a Lender pursuant to Section 2.03; provided, however, that (i) no such Lender shall be entitled to make more than two such designations, (ii) each such Lender making one or more of such designations shall retain the right to make Competitive Bid Advances as a Lender pursuant to Section 2.03, (iii) each such designation shall be to a Designated Bidder and (iv) the parties to each such designation shall execute and deliver to the Agent, for its acceptance and recording in the Register, a Designation Agreement. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Designation Agreement, the designee thereunder shall be a party hereto with a right to make Competitive Bid Advances as a Lender pursuant to Section 2.03 and the obligations related thereto. (e) By executing and delivering a Designation Agreement, the Lender making the designation thereunder and its designee thereunder confirm and agree with each other and the other parties hereto as follows: (i) such 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 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 designee 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 Designation Agreement; (iv) such designee will, independently and without reliance upon the Agent, such designating 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 designee confirms that it is a Designated Bidder; (vi) such designee 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 designee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (f) Upon its receipt of a Designation Agreement executed by a designating Lender and a designee representing that it is a Designated Bidder, the Agent shall, if such Designation Agreement has been completed and is substantially in the form of Exhibit D hereto, (i) accept such Designation Agreement, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower. (g) The Agent shall maintain at its address referred to in Section 8.02 a copy of each Assignment and Acceptance and each Designation Agreement delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and, with respect to Lenders other than Designated Bidders, the Commitment of, and principal amount of the Advances owing to, each Lender from time to time (the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agent and the Lenders may treat each Person whose name is recorded in the 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. (h) 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 Advances owing to it and the 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 holder of any such Note 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 reduce the principal of, or interest on, the Notes or any fees or other amounts payable hereunder, 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 Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation. (i) 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. (j) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Advances owing to it and the Note or Notes held by it) in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System. SECTION 8.08. Confidentiality. Neither the Agent nor any Lender shall disclose any Confidential Information to any other Person without the consent of the Borrower, other than (a) to the Agent's or such Lender's Affiliates and their officers, directors, employees, agents and advisors and, as contemplated by Section 8.07(i), 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 either Loan Party received by it from such Lender and (d) as requested or required by any state, federal or foreign authority or examiner regulating banks or banking. 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. 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. SECTION 8.11. Jurisdiction, Etc. (a) Each of the parties hereto hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of any New York State court or federal court of the United States of America sitting in New York City, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or the Notes, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in any such New York State 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. (h) 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 Advances owing to it and the 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 holder of any such Note 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 reduce the principal of, or interest on, the Notes or any fees or other amounts payable hereunder, 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 Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation. (i) 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. (j) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Advances owing to it and the Note or Notes held by it) in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System. SECTION 8.08. Confidentiality. Neither the Agent nor any Lender shall disclose any Confidential Information to any other Person without the consent of the Borrower, other than (a) to the Agent's or such Lender's Affiliates and their officers, directors, employees, agents and advisors and, as contemplated by Section 8.07(i), 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 either Loan Party received by it from such Lender and (d) as requested or required by any state, federal or foreign authority or examiner regulating banks or banking. 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. 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. SECTION 8.11. Jurisdiction, Etc. (a) Each of the parties hereto hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of any New York State court or federal court of the United States of America sitting in New York City, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or the Notes, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in any such New York State court or, to the extent permitted by law, in such federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right that any party may otherwise have to bring any action or proceeding relating to this Agreement or the Notes in the courts of any jurisdiction. (b) Each of the parties hereto irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or the Notes in any New York State or federal court. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court. SECTION 8.12. Effective Date Assignments; Etc. (a) As of the Effective Date, prior to giving effect to any assignment under this Agreement as of such date, each Existing Lender party hereto represents and warrants, as to the assignment effected by such Existing Lender by this Agreement that as of the Effective Date (i) its Existing Commitment is in the dollar amount specified as its Existing Commitment on Schedule II hereto and the aggregate outstanding principal amount of Existing Advances owing to it is in the dollar amount specified as the aggregate outstanding principal amount of Existing Advances owing to such Existing Lender on Schedule II hereto; and (ii) that such Existing Lender is the legal and beneficial owner of such interest being assigned by it hereunder and that such interest is free and clear of any adverse claim created by such Existing Lender. (b) Each Existing Lender party hereto and Initial Lender confirms to, and agrees with, each of the other Initial Lenders as to the assignment effected by this Agreement by such Existing Lender or Initial Lender, as the case may be, as follows: (i) except as set forth in subsection (a) above, each such Existing Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with the Original Credit Agreement or this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Original Credit Agreement or this Agreement or any other instrument or document furnished pursuant thereto or hereto; (ii) each such Existing Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or any of its Subsidiaries or the performance or observance by any Loan Party or any of its Subsidiaries of any of its obligations under the Original Credit Agreement or this Agreement or any other instrument or document furnished pursuant thereto or hereto; (iii) each Initial Lender confirms that it has received such documents and information as it has deemed appropriate to make its own credit analysis and decision to execute and deliver this Agreement and agrees that it shall have no recourse against the Agent, any Existing Lender or any other Lender with respect to any matters relating to the Original Credit Agreement or this Agreement; and (iv) each Initial Lender will, independently and without reliance upon the Agent, any Existing 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, the Note or Notes held by it and the other documents executed in connection herewith. (c) As of the Effective Date, (i) each Initial Lender shall be a party to this Agreement and, to the extent provided herein, have the rights and obligations of a Lender hereunder and (ii) each Existing Lender party hereto shall, to the extent provided herein, relinquish its rights and be released from its obligations under this Agreement as to any assignment effected herein. (d) From and after the Effective Date, the Agent shall make all payments under this Agreement in respect of the interest assigned hereby (including, without limitation, all payments of principal, interest and commitment fees with respect thereto) to the Initial Lenders and other Lenders hereunder. (e) On or before the Effective Date, the Borrower shall have paid all accrued interest, fees and other amounts payable and owing to the Existing Lenders and the Agent as of the Effective Date in connection with the Original Credit Agreement. Without prejudice to the survival of any other agreement of the Borrower under the Original Credit Agreement, all amounts that would be payable under Sections 2.11, 2.14 and 8.04 of the Original Credit Agreement shall be payable under this Agreement to the extent that such amounts have not been paid as of the Effective Date. 8.04 of the Original Credit Agreement shall be payable under this Agreement to the extent that such amounts have not been paid as of the Effective Date. (f) As of the Effective Date, (i) the Original Credit Agreement is amended and restated in full as set forth in this Agreement, (ii) the Existing Commitments are held by the Initial Lenders under this Agreement, (iii) the Existing Notes are cancelled and replaced by the Notes, and (iv) all obligations which, by the terms of the Original Credit Agreement, are evidenced by the Existing Notes are evidenced by the Notes. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] SECTION 8.13. Waiver of Jury Trial. Each of the Borrower, the Agent and the Lenders hereby irrevocably waives all right to trial by jury in any action, proceeding or counterclaim (whether based on contract, tort or otherwise) arising out of or relating to this Agreement or the Notes or the actions of the Agent or any Lender in the negotiation, administration, performance or enforcement thereof. 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 CAPITAL CORPORATION By Name: Title: CITIBANK, N.A., as Agent By Name: Title: Initial Lenders Commitment $30,000,000 CITIBANK, N.A. By Name: Title: $17,000,000 THE BANK OF NEW YORK By Name: Title: $15,000,000 THE BANK OF NOVA SCOTIA By Name: Title: $15,000,000 BANQUE PARIBAS By SECTION 8.13. Waiver of Jury Trial. Each of the Borrower, the Agent and the Lenders hereby irrevocably waives all right to trial by jury in any action, proceeding or counterclaim (whether based on contract, tort or otherwise) arising out of or relating to this Agreement or the Notes or the actions of the Agent or any Lender in the negotiation, administration, performance or enforcement thereof. 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 CAPITAL CORPORATION By Name: Title: CITIBANK, N.A., as Agent By Name: Title: Initial Lenders Commitment $30,000,000 CITIBANK, N.A. By Name: Title: $17,000,000 THE BANK OF NEW YORK By Name: Title: $15,000,000 THE BANK OF NOVA SCOTIA By Name: Title: $15,000,000 BANQUE PARIBAS By Name: Title: $27,500,000 BARCLAYS BANK PLC By Name: Title: $15,000,000 BAYERISCHE LANDESBANK GIROZENTRALE Initial Lenders Commitment $30,000,000 CITIBANK, N.A. By Name: Title: $17,000,000 THE BANK OF NEW YORK By Name: Title: $15,000,000 THE BANK OF NOVA SCOTIA By Name: Title: $15,000,000 BANQUE PARIBAS By Name: Title: $27,500,000 BARCLAYS BANK PLC By Name: Title: $15,000,000 BAYERISCHE LANDESBANK GIROZENTRALE By Name: Title: $17,000,000 THE CHASE MANHATTAN BANK By Name: Title: $20,000,000 COMERICA BANK By Name: Title: $10,000,000 THE DAI-ICHI KANGYO BANK, LTD., CHICAGO BRANCH By By Name: Title: $20,000,000 COMERICA BANK By Name: Title: $10,000,000 THE DAI-ICHI KANGYO BANK, LTD., CHICAGO BRANCH By Name: Title: $17,000,000 DEN DANSKE BANK By Name: Title: $27,500,000 THE FIRST NATIONAL BANK OF CHICAGO By Title: Name: $17,000,000 FIRST UNION NATIONAL BANK By Name: Title: $20,000,000 THE FUJI BANK LIMITED By Name: Title: $17,000,000 THE INDUSTRIAL BANK OF JAPAN, LIMITED By Name: Title: $15,000,000 THE LONG-TERM CREDIT BANK OF JAPAN, LTD. By Name: Title: $15,000,000 MELLON BANK, N.A. By Name: Title: Name: Title: $15,000,000 THE LONG-TERM CREDIT BANK OF JAPAN, LTD. By Name: Title: $15,000,000 MELLON BANK, N.A. By Name: Title: $15,000,000 MICHIGAN NATIONAL BANK By Name: Title: $10,000,000 THE SAKURA BANK, LTD. By Name: Title: $8,000,000 THE SANWA BANK, LIMITED, CHICAGO BRANCH By Name: Title: $15,000,000 SOCIETE GENERALE By Name: Title: $15,000,000 THE SUMITOMO BANK, LTD., CHICAGO BRANCH By Name: Title: $10,000,000 TORONTO DOMINION (TEXAS), INC. By Name: Title: $15,000,000 UNION BANK By Name: Name: Title: $10,000,000 TORONTO DOMINION (TEXAS), INC. By Name: Title: $15,000,000 UNION BANK By Name: Title: $17,000,000 GIROZENTRALE, WESTDEUTCHE NEW YORK BRANCH LANDESBANK By Name: Title: By Name: Title: $400,000,000 Total of the Commitments DTE CAPITAL C APPLICABLE LENDI --------------------------------------------------------------------------------------------------------Name of Initial Lender Domestic Lending Office Eurodollar Lending Office --------------------------------------------------------------------------------------------------------Citibank, N.A. One Court Square One Court Square Long Island City, NY 11120 Long Island City, NY 11120 Attention: Attention: Telecopier: (718) 248-4844 Telecopier: (718) 248-4844 --------------------------------------------------------------------------------------------------------The Bank of New York One Wall Street One Wall Street New York, NY 10286 New York, NY 10286 Attention: JoAnn Evans/Rita Pelosi Attention: JoAnn Evans/Rita P Telecopier: (212) 635-7923 Telecopier: (212) 635-7923 --------------------------------------------------------------------------------------------------------The Bank of Nova Scotia 600 Peachtree St. N.E., Suite 2700 600 Peachtree St. N.E., Suite Atlanta, GA 30308 Atlanta, GA 30308 Attention: Shannon Dancila Attention: Shannon Dancila Telecopier: (404) 888-8998 Telecopier: (404) 888-8998 --------------------------------------------------------------------------------------------------------Banque Paribas 787 Seventh Avenue 787 Seventh Avenue New York, NY 10019 New York, NY 10019 Attention: Robyn Gewanter Attention: John Anderson Telecopier: (212) 841-2217 Telecopier: (212) 841-2217 --------------------------------------------------------------------------------------------------------Barclays Bank PLC 75 Wall Street 222 Broadway New York, NY 10265 New York, NY 10038 Attention: Christine Francese Attention: Dawn Matthews Telecopier: (212) 412-5307 Telecopier: (212) 412-1098 --------------------------------------------------------------------------------------------------------Bayerische Landesbank 560 Lexington Avenue 560 Lexington Avenue Girozentrale New York, NY 10022 New York, NY 10022 Attention: Sean O'Sullivan Attention: Sean O'Sullivan DTE CAPITAL C APPLICABLE LENDI --------------------------------------------------------------------------------------------------------Name of Initial Lender Domestic Lending Office Eurodollar Lending Office --------------------------------------------------------------------------------------------------------Citibank, N.A. One Court Square One Court Square Long Island City, NY 11120 Long Island City, NY 11120 Attention: Attention: Telecopier: (718) 248-4844 Telecopier: (718) 248-4844 --------------------------------------------------------------------------------------------------------The Bank of New York One Wall Street One Wall Street New York, NY 10286 New York, NY 10286 Attention: JoAnn Evans/Rita Pelosi Attention: JoAnn Evans/Rita P Telecopier: (212) 635-7923 Telecopier: (212) 635-7923 --------------------------------------------------------------------------------------------------------The Bank of Nova Scotia 600 Peachtree St. N.E., Suite 2700 600 Peachtree St. N.E., Suite Atlanta, GA 30308 Atlanta, GA 30308 Attention: Shannon Dancila Attention: Shannon Dancila Telecopier: (404) 888-8998 Telecopier: (404) 888-8998 --------------------------------------------------------------------------------------------------------Banque Paribas 787 Seventh Avenue 787 Seventh Avenue New York, NY 10019 New York, NY 10019 Attention: Robyn Gewanter Attention: John Anderson Telecopier: (212) 841-2217 Telecopier: (212) 841-2217 --------------------------------------------------------------------------------------------------------Barclays Bank PLC 75 Wall Street 222 Broadway New York, NY 10265 New York, NY 10038 Attention: Christine Francese Attention: Dawn Matthews Telecopier: (212) 412-5307 Telecopier: (212) 412-1098 --------------------------------------------------------------------------------------------------------Bayerische Landesbank 560 Lexington Avenue 560 Lexington Avenue Girozentrale New York, NY 10022 New York, NY 10022 Attention: Sean O'Sullivan Attention: Sean O'Sullivan Telecopier: (212) 310-9868 Telecopier: (212) --------------------------------------------------------------------------------------------------------Chase Manhattan Bank One Chase Manhattan Plaza One Chase Manhattan Plaza Third Floor Third Floor New York, NY 10081 New York, NY 10081 Attention: Lynett Lang Attention: Lynett Lang Telecopier: (212) 552-5777 Telecopier: (212) 552-5777 --------------------------------------------------------------------------------------------------------Comerica Bank 500 Woodward Avenue, MC 3268 500 Woodward Avenue, MC 3268 Detroit, MI 48226 Detroit, MI 48226 Attention: Donna Pierzynowski Attention: Donna Pierzynowski Telecopier: (313) 222-9514 Telecopier: (313) 222-9514 --------------------------------------------------------------------------------------------------------The Dai-Ichi Kangyo Bank, Ltd., 10 S. Wacker Drive, Suite 2600 10 S. Wacker Drive, Suite 2600 Chicago Branch Chicago, IL 60606 Chicago, IL 60606 Attention: Bonita Conley Attention: R. Howard Telecopier: (312) 876-2011 Telecopier: (312) 876-2011 --------------------------------------------------------------------------------------------------------Den Danske Bank 280 Park Avenue, 4th Floor 280 Park Avenue, 4th Floor New York, NY 10017 New York, NY 10017 Attention: Mogens Sondgaard Attention: Mogens Sondgaard Telecopier: (212) 559-2493 Telecopier: (212) --------------------------------------------------------------------------------------------------------- The First National Bank of Chicago One First National Plaza One First National Plaza Chicago, IL 60670 Chicago, IL 60670 Attention: Richard Waldman Attention: Lyn Pozsgay Telecopier: (312) 732-3055 Telecopier: (312) 732-4840 --------------------------------------------------------------------------------------------------------First Union Bank 301 South College St., TW-5 301 South College St., TW-5 Charlotte, NC 28288-0735 Charlotte, NC 28288-0735 Attention: Dana Maloney Attention: Dana Maloney Telecopier: (704) 383-6670 Telecopier: (704) 383-6670 --------------------------------------------------------------------------------------------------------The Fuji Bank Limited 225 West Wacker Drive, Suite 2000 225 West Wacker Drive, Suite 2 Chicago, IL 60606 Chicago, IL 60606 Attention: Phil Langheim Attention: Phil Langheim Telecopier: (312) 621-0539 Telecopier: (312) 621-0539 --------------------------------------------------------------------------------------------------------The Industrial Bank of Japan, 227 West Monroe Street, Suite 2600 227 West Monroe Street, Suite Limited Chicago, IL 60606 Chicago, IL 60606 The First National Bank of Chicago One First National Plaza One First National Plaza Chicago, IL 60670 Chicago, IL 60670 Attention: Richard Waldman Attention: Lyn Pozsgay Telecopier: (312) 732-3055 Telecopier: (312) 732-4840 --------------------------------------------------------------------------------------------------------First Union Bank 301 South College St., TW-5 301 South College St., TW-5 Charlotte, NC 28288-0735 Charlotte, NC 28288-0735 Attention: Dana Maloney Attention: Dana Maloney Telecopier: (704) 383-6670 Telecopier: (704) 383-6670 --------------------------------------------------------------------------------------------------------The Fuji Bank Limited 225 West Wacker Drive, Suite 2000 225 West Wacker Drive, Suite 2 Chicago, IL 60606 Chicago, IL 60606 Attention: Phil Langheim Attention: Phil Langheim Telecopier: (312) 621-0539 Telecopier: (312) 621-0539 --------------------------------------------------------------------------------------------------------The Industrial Bank of Japan, 227 West Monroe Street, Suite 2600 227 West Monroe Street, Suite Limited Chicago, IL 60606 Chicago, IL 60606 Attention: Margie Smith Attention: Margie Smith Telecopier: (312) 855-8200 Telecopier: (312) 855-8200 --------------------------------------------------------------------------------------------------------The Long-Term Credit Bank 165 Broadway, 48th Floor 165 Broadway, 48th Floor of Japan, Ltd. New York, NY 10006 New York, NY 10006 Attention: Claire Kowalski Attention: Claire Kowalski Telecopier: (212) 335-4441 Telecopier: (212) 335-4441 --------------------------------------------------------------------------------------------------------Mellon Bank, N.A. Three Mellon Bank Center, Rm 2332 Three Mellon Bank Center, Rm 2 Pittsburgh, PA 15259 Pittsburgh, PA 15259 Attention: Kathy Capp Attention: Kathy Capp Telecopier: (412) 234-4644 Telecopier: (412) 234-4644 --------------------------------------------------------------------------------------------------------Michigan National Bank 24101 Novi Rd. Suite 101 24101 Novi Rd. Suite 101 Novi, MI 48375 Novi, MI 48375 Attention: James Tesen Attention: James Tesen Telecopier: (820) 479-8927 Telecopier: (820) 479-8927 --------------------------------------------------------------------------------------------------------The Sakura Bank 227 W. Monroe Street, Suite 4700 227 W. Monroe Street, Suite 47 Chicago, IL 60606 Chicago, IL 60606 Attention: Kristin Hays Attention: Kristin Hays Telecopier: (312) 332-5345 Telecopier: (312) 332-5345 --------------------------------------------------------------------------------------------------------The Sanwa Bank 10 South Wacker Drive 10 South Wacker Drive Chicago, IL 60606 Chicago, IL 60606 Attention: Richard Ault Attention: Richard Ault Telecopier: (312) 346-6677 Telecopier: (312) 346-6677 --------------------------------------------------------------------------------------------------------Societe Generale 181 West Madison, Suite 3400 181 West Madison, Suite 3400 Chicago, IL 60602 Chicago, IL 60602 Attention: R. Boyd Harman Attention: Albert Tune Telecopier: (312) 578-5099 Telecopier: (312) 578-5099 --------------------------------------------------------------------------------------------------------The Sumitomo Bank, Ltd., 233 South Wacker Drive, Suite 4800 233 South Wacker Drive, Suite Chicago Branch Chicago, IL 60606-6448 Chicago, IL 60606-6448 Attention: Kwang Park Attention: Kwang Park Telecopier: (312) 876-1490 Telecopier: (312) 876-1490 --------------------------------------------------------------------------------------------------------- The Toronto Dominion (Texas), Inc. 909 Fanin, Suite 1700 909 Fanin, Suite 1700 Houston, TX 77010 Houston, TX 77010 Attention: David Parker, Manager, Attention: David Parker, Mana Credit Administration Credit Administration Telecopier: (713) 951-9921 Telecopier: (713) 951-9921 --------------------------------------------------------------------------------------------------------Union Bank Energy Capital Services Energy Capital Services 445 S. Figueroa Street, 15th Floor 445 S. Figueroa Street, 15th F Los Angeles, CA 90071 Los Angeles, CA 90071 Attention: Patricia Gonzalez Attention: Patricia Gonzalez Telecopier: (213) 236-4096 Telecopier: (213) 236-4096 --------------------------------------------------------------------------------------------------------Westdeutche Landesbank 1211 Avenue of the Americas 1211 Avenue of the Americas Grozentrale, New York Branch New York, NY 10036 New York, NY 10036 Attention: Cheryl Wilson Attention: Cheryl Wilson Telecopier: (212) 302-7946 Telecopier: (212) 302-7946 --------------------------------------------------------------------------------------------------------- The Toronto Dominion (Texas), Inc. 909 Fanin, Suite 1700 909 Fanin, Suite 1700 Houston, TX 77010 Houston, TX 77010 Attention: David Parker, Manager, Attention: David Parker, Mana Credit Administration Credit Administration Telecopier: (713) 951-9921 Telecopier: (713) 951-9921 --------------------------------------------------------------------------------------------------------Union Bank Energy Capital Services Energy Capital Services 445 S. Figueroa Street, 15th Floor 445 S. Figueroa Street, 15th F Los Angeles, CA 90071 Los Angeles, CA 90071 Attention: Patricia Gonzalez Attention: Patricia Gonzalez Telecopier: (213) 236-4096 Telecopier: (213) 236-4096 --------------------------------------------------------------------------------------------------------Westdeutche Landesbank 1211 Avenue of the Americas 1211 Avenue of the Americas Grozentrale, New York Branch New York, NY 10036 New York, NY 10036 Attention: Cheryl Wilson Attention: Cheryl Wilson Telecopier: (212) 302-7946 Telecopier: (212) 302-7946 --------------------------------------------------------------------------------------------------------- SCHEDULE EXISTING COMMITME AND ADVAN --------------------------------------Name of Existing Lender --------------------------------------Citibank, N.A. --------------------------------------ABN-AMRO Bank --------------------------------------Bank of America --------------------------------------The Bank of New York --------------------------------------Banque Paribas --------------------------------------Barclays Bank PLC --------------------------------------BHF-Bank Aktiengesellschaft --------------------------------------Chase Manhattan Bank --------------------------------------Comerica Bank --------------------------------------The Dai-Ichi Kangyo Bank, Ltd. Chicago Branch --------------------------------------The First National Bank of Chicago --------------------------------------The Fuji Bank Limited --------------------------------------The Industrial Bank of Japan, Limited --------------------------------------J.P. Morgan Delaware --------------------------------------The Long-Term Credit Bank of Japan, Ltd. --------------------------------------Mellon Bank, N.A. --------------------------------------Michigan National Bank --------------------------------------The Sanwa Bank --------------------------------------Societe Generale --------------------------------------The Sumitomo Bank, Ltd., Chicago Branch --------------------------------------The Toronto Dominion Bank --------------------------------------Union Bank --------------------------------------Westdeutche Landesbank Grozentrale, New York Branch -----------------------------------------------------------------------Existing Commitments ---------------------------------12,000,000.00 ---------------------------------8,000,000.00 ---------------------------------10,000,000.00 ---------------------------------10,000,000.00 ---------------------------------8,000,000.00 ---------------------------------11,000,000.00 ---------------------------------8,000,000.00 ---------------------------------10,000,000.00 ---------------------------------8,000,000.00 ---------------------------------8,000,000.00 -----------------------------Existing Advances -----------------------------3,120,000. -----------------------------2,080,000. -----------------------------2,600,000. -----------------------------2,600,000. -----------------------------2,080,000. -----------------------------2,860,000. -----------------------------2,080,000. -----------------------------2,600,000. -----------------------------2,080,000. -----------------------------2,080,000. ---------------------------------- -----------------------------11,000,000.00 2,860,000. ---------------------------------- -----------------------------8,000,000.00 2,080,000. ---------------------------------- -----------------------------8,000,000.00 2,080,000. ---------------------------------- -----------------------------8,000,000.00 2,080,000. ---------------------------------- -----------------------------8,000,000.00 2,080,000. ---------------------------------8,000,000.00 ---------------------------------8,000,000.00 ---------------------------------8,000,000.00 ---------------------------------8,000,000.00 ---------------------------------8,000,000.00 -----------------------------2,080,000. -----------------------------2,080,000. -----------------------------2,080,000. -----------------------------2,080,000. -----------------------------2,080,000. ---------------------------------- -----------------------------8,000,000.00 2,080,000. ---------------------------------- -----------------------------8,000,000.00 2,080,000. ---------------------------------- -----------------------------8,000,000.00 2,080,000. ---------------------------------- ------------------------------ SCHEDULE EXISTING COMMITME AND ADVAN --------------------------------------Name of Existing Lender --------------------------------------Citibank, N.A. --------------------------------------ABN-AMRO Bank --------------------------------------Bank of America --------------------------------------The Bank of New York --------------------------------------Banque Paribas --------------------------------------Barclays Bank PLC --------------------------------------BHF-Bank Aktiengesellschaft --------------------------------------Chase Manhattan Bank --------------------------------------Comerica Bank --------------------------------------The Dai-Ichi Kangyo Bank, Ltd. Chicago Branch --------------------------------------The First National Bank of Chicago --------------------------------------The Fuji Bank Limited --------------------------------------The Industrial Bank of Japan, Limited --------------------------------------J.P. Morgan Delaware --------------------------------------The Long-Term Credit Bank of Japan, Ltd. --------------------------------------Mellon Bank, N.A. --------------------------------------Michigan National Bank --------------------------------------The Sanwa Bank --------------------------------------Societe Generale --------------------------------------The Sumitomo Bank, Ltd., Chicago Branch --------------------------------------The Toronto Dominion Bank --------------------------------------Union Bank --------------------------------------Westdeutche Landesbank Grozentrale, New York Branch -----------------------------------------------------------------------Existing Commitments ---------------------------------12,000,000.00 ---------------------------------8,000,000.00 ---------------------------------10,000,000.00 ---------------------------------10,000,000.00 ---------------------------------8,000,000.00 ---------------------------------11,000,000.00 ---------------------------------8,000,000.00 ---------------------------------10,000,000.00 ---------------------------------8,000,000.00 ---------------------------------8,000,000.00 -----------------------------Existing Advances -----------------------------3,120,000. -----------------------------2,080,000. -----------------------------2,600,000. -----------------------------2,600,000. -----------------------------2,080,000. -----------------------------2,860,000. -----------------------------2,080,000. -----------------------------2,600,000. -----------------------------2,080,000. -----------------------------2,080,000. ---------------------------------- -----------------------------11,000,000.00 2,860,000. ---------------------------------- -----------------------------8,000,000.00 2,080,000. ---------------------------------- -----------------------------8,000,000.00 2,080,000. ---------------------------------- -----------------------------8,000,000.00 2,080,000. ---------------------------------- -----------------------------8,000,000.00 2,080,000. ---------------------------------8,000,000.00 ---------------------------------8,000,000.00 ---------------------------------8,000,000.00 ---------------------------------8,000,000.00 ---------------------------------8,000,000.00 -----------------------------2,080,000. -----------------------------2,080,000. -----------------------------2,080,000. -----------------------------2,080,000. -----------------------------2,080,000. ---------------------------------- -----------------------------8,000,000.00 2,080,000. ---------------------------------- -----------------------------8,000,000.00 2,080,000. ---------------------------------- -----------------------------8,000,000.00 2,080,000. ---------------------------------- ------------------------------ Schedule 5.02(a) Existing Liens EXHIBIT A-1 - FORM OF REVOLVING CREDIT PROMISSORY NOTE U.S.$_______________ Dated: _______________, 199 Schedule 5.02(a) Existing Liens EXHIBIT A-1 - FORM OF REVOLVING CREDIT PROMISSORY NOTE U.S.$_______________ Dated: _______________, 199 FOR VALUE RECEIVED, the undersigned, DTE CAPITAL CORPORATION, a Michigan corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of _________________________ (the "Lender") for the account of its Applicable Lending Office on the Revolver Termination Date (each as defined in the Credit Agreement referred to below) or, if the Borrower makes a Term Loan Election, on the Maturity Date (each as defined in the Credit Agreement referred to below), the principal sum of U.S.$[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 Credit Agreement dated as of January 21, 1998 (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 Revolver Termination Date or Maturity Date, as applicable. 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 One Court Square, Long Island City, NY 11120, 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 Revolving Credit 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 CAPITAL CORPORATION By Title: ADVANCES AND PAYMENTS OF PRINCIPAL Amount of Amount of Principal Paid or Unpaid Principal Date Advance Prepaid Balance ----------------- --------------------------- ------------------------------ ---------------------- --------------------- --------------------------- ------------------------------ ---------------------- --------------------- --------------------------- ------------------------------ ---------------------- --------------------- --------------------------- ------------------------------ ---------------------- ----- EXHIBIT A-1 - FORM OF REVOLVING CREDIT PROMISSORY NOTE U.S.$_______________ Dated: _______________, 199 FOR VALUE RECEIVED, the undersigned, DTE CAPITAL CORPORATION, a Michigan corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of _________________________ (the "Lender") for the account of its Applicable Lending Office on the Revolver Termination Date (each as defined in the Credit Agreement referred to below) or, if the Borrower makes a Term Loan Election, on the Maturity Date (each as defined in the Credit Agreement referred to below), the principal sum of U.S.$[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 Credit Agreement dated as of January 21, 1998 (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 Revolver Termination Date or Maturity Date, as applicable. 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 One Court Square, Long Island City, NY 11120, 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 Revolving Credit 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 CAPITAL CORPORATION By Title: ADVANCES AND PAYMENTS OF PRINCIPAL Amount of Amount of Principal Paid or Unpaid Principal Date Advance Prepaid Balance ----------------- --------------------------- ------------------------------ ---------------------- --------------------- --------------------------- ------------------------------ ---------------------- --------------------- --------------------------- ------------------------------ ---------------------- --------------------- --------------------------- ------------------------------ ---------------------- --------------------- --------------------------- ------------------------------ ---------------------- --------------------- --------------------------- ------------------------------ ---------------------- --------------------- --------------------------- ------------------------------ ---------------------- --------------------- --------------------------- ------------------------------ ---------------------- ----- ADVANCES AND PAYMENTS OF PRINCIPAL Amount of Amount of Principal Paid or Unpaid Principal Date Advance Prepaid Balance ----------------- --------------------------- ------------------------------ ---------------------- --------------------- --------------------------- ------------------------------ ---------------------- --------------------- --------------------------- ------------------------------ ---------------------- --------------------- --------------------------- ------------------------------ ---------------------- --------------------- --------------------------- ------------------------------ ---------------------- --------------------- --------------------------- ------------------------------ ---------------------- --------------------- --------------------------- ------------------------------ ---------------------- --------------------- --------------------------- ------------------------------ ---------------------- --------------------- --------------------------- ------------------------------ ---------------------- --------------------- --------------------------- ------------------------------ ---------------------- --------------------- --------------------------- ------------------------------ ---------------------- --------------------- --------------------------- ------------------------------ ---------------------- --------------------- --------------------------- ------------------------------ ---------------------- --------------------- --------------------------- ------------------------------ ---------------------- --------------------- --------------------------- ------------------------------ ---------------------- --------------------- --------------------------- ------------------------------ ---------------------- --------------------- --------------------------- ------------------------------ ---------------------- --------------------- --------------------------- ------------------------------ ---------------------- --------------------- --------------------------- ------------------------------ ---------------------- --------------------- --------------------------- ------------------------------ ---------------------- --------------------- --------------------------- ------------------------------ ---------------------- --------------------- --------------------------- ------------------------------ ---------------------- --------------------- --------------------------- ------------------------------ ---------------------- --------------------- --------------------------- ------------------------------ ---------------------- --------------------- --------------------------- ------------------------------ ---------------------- ----- EXHIBIT A-2 - FORM OF COMPETITIVE BID PROMISSORY NOTE U.S.$_______________ Dated: _______________, 199_ FOR VALUE RECEIVED, the undersigned, DTE CAPITAL CORPORATION, a Michigan corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of _________________________ (the "Lender") for the account of its Applicable Lending Office (as defined in the Amended and Restated Credit Agreement dated as of January 21, 1998 (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), on _______________, 199_ the principal amount of $U.S. ______________. EXHIBIT A-2 - FORM OF COMPETITIVE BID PROMISSORY NOTE U.S.$_______________ Dated: _______________, 199_ FOR VALUE RECEIVED, the undersigned, DTE CAPITAL CORPORATION, a Michigan corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of _________________________ (the "Lender") for the account of its Applicable Lending Office (as defined in the Amended and Restated Credit Agreement dated as of January 21, 1998 (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), on _______________, 199_ the principal amount of $U.S. ______________. The Borrower promises to pay interest on the unpaid principal amount hereof from the date hereof until such principal amount is paid in full, at the interest rate and payable on the interest payment date or dates provided below: Interest Rate: _____% per annum (calculated on the basis of a year of _____ days for the actual number of days elapsed). Both principal and interest are payable in lawful money of the United States of America to _________________________ for the account of the Lender at the office of _________________________, at _________________________ in same day funds. This Promissory Note is one of the Competitive Bid Notes referred to in, and is entitled to the benefits of, the Credit Agreement. The Credit Agreement, among other things, contains provisions for acceleration of the maturity hereof upon the happening of certain stated events. The Borrower hereby waives presentment, demand, protest and notice of any kind. No failure to exercise, and no delay in exercising, any rights hereunder on the part of the holder hereof shall operate as a waiver of such rights. This Promissory Note shall be governed by, and construed in accordance with, the laws of the State of New York. DTE CAPITAL CORPORATION By Title: EXHIBIT B-1 - FORM OF NOTICE OF REVOLVING CREDIT BORROWING Citibank, N.A., as Agent for the Lenders parties to the Credit Agreement referred to below 399 Park Avenue New York, NY 10043 [Date] Attention: _______________ Ladies and Gentlemen: The undersigned, DTE Capital Corporation, refers to the Amended and Restated Credit Agreement, dated as of EXHIBIT B-1 - FORM OF NOTICE OF REVOLVING CREDIT BORROWING Citibank, N.A., as Agent for the Lenders parties to the Credit Agreement referred to below 399 Park Avenue New York, NY 10043 [Date] Attention: _______________ Ladies and Gentlemen: The undersigned, DTE Capital Corporation, refers to the Amended and Restated Credit Agreement, dated as of January 21, 1998 (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 ____________________, 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 Revolving Credit Borrowing under the Credit Agreement, and in that connection sets forth below the information relating to such Revolving Credit Borrowing (the "Proposed Revolving Credit Borrowing") as required by Section 2.02(a) of the Credit Agreement: (i) The Business Day of the Proposed Revolving Credit Borrowing is _______________, 199_. (ii) The Type of Advances comprising the Proposed Revolving Credit Borrowing is [Base Rate Advances] [Eurodollar Rate Advances]. (iii) The aggregate amount of the Proposed Revolving Credit Borrowing is $_______________. [(iv) The initial Interest Period for each Eurodollar Rate Advance made as part of the Proposed Revolving Credit Borrowing is _____ month[s].] The undersigned hereby certifies that the following statements are true on the date hereof, and will be true on the date of the Proposed Revolving Credit Borrowing: (A) the representations and warranties contained in Section 4.01 of the Credit Agreement are correct, before and after giving effect to the Proposed Revolving Credit Borrowing and to the application of the proceeds therefrom, as though made on and as of such date; and (B) no event has occurred and is continuing, or would result from such Proposed Revolving Credit Borrowing or from the application of the proceeds therefrom, that constitutes a Default. Very truly yours, DTE CAPITAL CORPORATION By Title: EXHIBIT B-2 - FORM OF NOTICE OF COMPETITIVE BID BORROWING Citibank, N.A., as Agent for the Lenders parties to the Credit Agreement EXHIBIT B-2 - FORM OF NOTICE OF COMPETITIVE BID BORROWING Citibank, N.A., as Agent for the Lenders parties to the Credit Agreement referred to below 399 Park Avenue New York, NY 10043 [Date] Attention: _______________ Ladies and Gentlemen: The undersigned, DTE Capital Corporation, refers to the Amended and Restated Credit Agreement, dated as of January 21, 1998 (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 2.03 of the Credit Agreement that the undersigned hereby requests a Competitive Bid Borrowing under the Credit Agreement, and in that connection sets forth the terms on which such Competitive Bid Borrowing (the "Proposed Competitive Bid Borrowing") is requested to be made: (A) (B) (C) (D) (E) (F) (G) (H) Date of Competitive Bid Borrowing Amount of Competitive Bid Borrowing [Maturity Date] [Interest Period] Interest Rate Basis Interest Payment Date(s) ___________________ ___________________ ___________________ ________________________ ________________________ ________________________ ________________________ ________________________ ________________________ ________________________ ________________________ The undersigned hereby certifies that the following statements are true on the date hereof, and will be true on the date of the Proposed Competitive Bid Borrowing: (a) the representations and warranties contained in Section 4.01 of the Credit Agreement are correct, before and after giving effect to the Proposed Competitive Bid Borrowing and to the application of the proceeds therefrom, as though made on and as of such date; (b) no event has occurred and is continuing, or would result from the Proposed Competitive Bid Borrowing or from the application of the proceeds therefrom, that constitutes a Default; (c) no event has occurred and no circumstance exists as a result of which the information concerning the undersigned that has been provided to the Agent and each Lender as of the date hereof by the undersigned in connection with the Credit Agreement would include an untrue statement of a material fact or omit to state any material fact or any fact necessary to make the statements contained therein, in the light of the circumstances under which they were made, not misleading; and (d) the aggregate amount of the Proposed Competitive Bid Borrowing and all other Borrowings to be made on the same day under the Credit Agreement is within the aggregate amount of the unused Commitments of the Lenders. The undersigned hereby confirms that the Proposed Competitive Bid Borrowing is to be made available to it in accordance with Section 2.03(a)(v) of the Credit Agreement. Very truly yours, The undersigned hereby confirms that the Proposed Competitive Bid Borrowing is to be made available to it in accordance with Section 2.03(a)(v) of the Credit Agreement. Very truly yours, DTE CAPITAL CORPORATION By Title: EXHIBIT C - FORM OF ASSIGNMENT AND ACCEPTANCE Reference is made to the Amended and Restated Credit Agreement dated as of January 21, 1998 (as amended or modified from time to time, the "Credit Agreement") among DTE Capital Corporation, a Michigan corporation (the "Borrower"), the Lenders (as defined in the Credit Agreement) and Citibank, N.A., as agent for the Lenders (the "Agent"). Terms defined in the Credit Agreement are used herein with the same meaning. The "Assignor" and the "Assignee" referred to on Schedule I hereto agree as follows: 1. The Assignor hereby sells and assigns to the Assignee, and the Assignee hereby purchases and assumes from the Assignor, an interest in and to the Assignor's rights and obligations under the Credit Agreement as of the date hereof (other than in respect of Competitive Bid Advances and Competitive Bid Notes) equal to the percentage interest specified on Schedule 1 hereto of all outstanding rights and obligations under the Credit Agreement (other than in respect of Competitive Bid Advances and Competitive Bid Notes). After giving effect to such sale and assignment, the Assignee's Commitment and the amount of the Revolving Credit Advances owing to the Assignee will be as set forth on Schedule 1 hereto. 2. The Assignor (i) represents and warrants that it is the legal and beneficial owner of the interest being assigned by it hereunder and that such interest is free and clear of any adverse claim; (ii) makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with the Credit Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Credit Agreement or any other instrument or document furnished pursuant thereto; (iii) makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or the performance or observance by the Borrower of any of its obligations under the Credit Agreement or any other instrument or document furnished pursuant thereto; and (iv) attaches the Revolving Credit Note held by the Assignor and requests that the Agent exchange such Revolving Credit Note for a new Revolving Credit Note payable to the order of the Assignee in an amount equal to the Commitment assumed by the Assignee pursuant hereto or new Revolving Credit Notes payable to the order of the Assignee in an amount equal to the Commitment assumed by the Assignee pursuant hereto and the Assignor in an amount equal to the Commitment retained by the Assignor under the Credit Agreement, respectively, as specified on Schedule 1 hereto. 3. The Assignee (i) confirms that it has received a copy of the Credit Agreement, together with copies of the financial statements referred to in Section 4.01 thereof and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Acceptance; (ii) agrees that it will, independently and without reliance upon the Agent, the Assignor or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement; (iii) confirms that it is an Eligible Assignee; (iv) appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Credit Agreement as are delegated to the Agent by the terms thereof, together with such powers and discretion as are reasonably incidental thereto; (v) agrees that it will perform in accordance with their terms all of the obligations that by the terms of the Credit Agreement are required to be performed by it as a Lender; and (vi) attaches any U.S. Internal Revenue Service forms required under Section 2.14 of the Credit Agreement. 4. Following the execution of this Assignment and Acceptance, it will be delivered to the Agent for acceptance EXHIBIT C - FORM OF ASSIGNMENT AND ACCEPTANCE Reference is made to the Amended and Restated Credit Agreement dated as of January 21, 1998 (as amended or modified from time to time, the "Credit Agreement") among DTE Capital Corporation, a Michigan corporation (the "Borrower"), the Lenders (as defined in the Credit Agreement) and Citibank, N.A., as agent for the Lenders (the "Agent"). Terms defined in the Credit Agreement are used herein with the same meaning. The "Assignor" and the "Assignee" referred to on Schedule I hereto agree as follows: 1. The Assignor hereby sells and assigns to the Assignee, and the Assignee hereby purchases and assumes from the Assignor, an interest in and to the Assignor's rights and obligations under the Credit Agreement as of the date hereof (other than in respect of Competitive Bid Advances and Competitive Bid Notes) equal to the percentage interest specified on Schedule 1 hereto of all outstanding rights and obligations under the Credit Agreement (other than in respect of Competitive Bid Advances and Competitive Bid Notes). After giving effect to such sale and assignment, the Assignee's Commitment and the amount of the Revolving Credit Advances owing to the Assignee will be as set forth on Schedule 1 hereto. 2. The Assignor (i) represents and warrants that it is the legal and beneficial owner of the interest being assigned by it hereunder and that such interest is free and clear of any adverse claim; (ii) makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with the Credit Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Credit Agreement or any other instrument or document furnished pursuant thereto; (iii) makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or the performance or observance by the Borrower of any of its obligations under the Credit Agreement or any other instrument or document furnished pursuant thereto; and (iv) attaches the Revolving Credit Note held by the Assignor and requests that the Agent exchange such Revolving Credit Note for a new Revolving Credit Note payable to the order of the Assignee in an amount equal to the Commitment assumed by the Assignee pursuant hereto or new Revolving Credit Notes payable to the order of the Assignee in an amount equal to the Commitment assumed by the Assignee pursuant hereto and the Assignor in an amount equal to the Commitment retained by the Assignor under the Credit Agreement, respectively, as specified on Schedule 1 hereto. 3. The Assignee (i) confirms that it has received a copy of the Credit Agreement, together with copies of the financial statements referred to in Section 4.01 thereof and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Acceptance; (ii) agrees that it will, independently and without reliance upon the Agent, the Assignor or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement; (iii) confirms that it is an Eligible Assignee; (iv) appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Credit Agreement as are delegated to the Agent by the terms thereof, together with such powers and discretion as are reasonably incidental thereto; (v) agrees that it will perform in accordance with their terms all of the obligations that by the terms of the Credit Agreement are required to be performed by it as a Lender; and (vi) attaches any U.S. Internal Revenue Service forms required under Section 2.14 of the Credit Agreement. 4. Following the execution of this Assignment and Acceptance, it will be delivered to the Agent for acceptance and recording by the Agent. The effective date for this Assignment and Acceptance (the "Effective Date") shall be the date of acceptance hereof by the Agent, unless otherwise specified on Schedule 1 hereto. 5. Upon such acceptance and recording by the Agent, as of the Effective Date, (i) the Assignee shall be a party to the Credit Agreement and, to the extent provided in this Assignment and Acceptance, have the rights and obligations of a Lender thereunder and (ii) the Assignor shall, to the extent provided in this Assignment and Acceptance, relinquish its rights and be released from its obligations under the Credit Agreement. 6. Upon such acceptance and recording by the Agent, from and after the Effective Date, the Agent shall make all have the rights and obligations of a Lender thereunder and (ii) the Assignor shall, to the extent provided in this Assignment and Acceptance, relinquish its rights and be released from its obligations under the Credit Agreement. 6. Upon such acceptance and recording by the Agent, from and after the Effective Date, the Agent shall make all payments under the Credit Agreement and the Revolving Credit Notes in respect of the interest assigned hereby (including, without limitation, all payments of principal, interest and facility fees with respect thereto) to the Assignee. The Assignor and Assignee shall make all appropriate adjustments in payments under the Credit Agreement and the Revolving Credit Notes for periods prior to the Effective Date directly between themselves. 7. This Assignment and Acceptance shall be governed by, and construed in accordance with, the laws of the State of New York. 8. This Assignment and Acceptance may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of Schedule 1 to this Assignment and Acceptance by telecopier shall be effective as delivery of a manually executed counterpart of this Assignment and Acceptance. IN WITNESS WHEREOF, the Assignor and the Assignee have caused Schedule 1 to this Assignment and Acceptance to be executed by their officers thereunto duly authorized as of the date specified thereon. Schedule 1 to Assignment and Acceptance Percentage interest assigned: Assignee's Commitment: Aggregate outstanding principal amount of Revolving Credit Advances assigned: Principal amount of Revolving Credit Note payable to Assignee: Principal amount of Revolving Credit Note payable to Assignor: Effective Date (1): _______________, 199_ _____% [NAME OF ASSIGNOR], as Assignor By Title: Dated: _______________, 199_ [NAME OF ASSIGNEE], as Assignee By Title: Dated: _______________, 199_ Domestic Lending Office: [Address] Eurodollar Lending Office: [Address] Accepted [and Approved] (2) this __________ day of _______________, 199_ _________________________, as Agent By Title: [Approved this __________ day of _______________, 199_.] [NAME OF BORROWER] By ]** Schedule 1 to Assignment and Acceptance Percentage interest assigned: Assignee's Commitment: Aggregate outstanding principal amount of Revolving Credit Advances assigned: Principal amount of Revolving Credit Note payable to Assignee: Principal amount of Revolving Credit Note payable to Assignor: Effective Date (1): _______________, 199_ _____% [NAME OF ASSIGNOR], as Assignor By Title: Dated: _______________, 199_ [NAME OF ASSIGNEE], as Assignee By Title: Dated: _______________, 199_ Domestic Lending Office: [Address] Eurodollar Lending Office: [Address] Accepted [and Approved] (2) this __________ day of _______________, 199_ _________________________, as Agent By Title: [Approved this __________ day of _______________, 199_.] [NAME OF BORROWER] By Title: ]** (1) This date should be no earlier than five Business Days after delivery of this Assignment and Acceptance to the Agent. (2) Required if the Assignee is an Eligible Assignee solely by reason of clause (viii) of the definition of "Eligible Assignee". EXHIBIT D - FORM OF DESIGNATION AGREEMENT Dated _______________, 199_ Reference is made to the Amended and Restated Credit Agreement dated as of January 21, 1998 (as amended or modified from time to time, the "Credit Agreement") among DTE Capital Corporation, a Michigan corporation (the "Borrower"), the Lenders (as defined in the Credit Agreement) and Citibank, N.A., as agent for the Lenders (the "Agent"). Terms defined in the Credit Agreement are used herein with the same meaning. EXHIBIT D - FORM OF DESIGNATION AGREEMENT Dated _______________, 199_ Reference is made to the Amended and Restated Credit Agreement dated as of January 21, 1998 (as amended or modified from time to time, the "Credit Agreement") among DTE Capital Corporation, a Michigan corporation (the "Borrower"), the Lenders (as defined in the Credit Agreement) and Citibank, N.A., as agent for the Lenders (the "Agent"). Terms defined in the Credit Agreement are used herein with the same meaning. _________________________ (the "Designor") and _______________ (the "Designee") agree as follows: 1. The Designor hereby designates the Designee, and the Designee hereby accepts such designation, to have a right to make Competitive Bid Advances pursuant to Section 2.03 of the Credit Agreement. 2. The Designor makes no representation or warranty and assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit 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, any Loan Document or any other instrument or document furnished pursuant thereto and (ii) the financial condition of the Borrower or the performance or observance by the Borrower of any of its obligations under the Credit Agreement or any other instrument or document furnished pursuant thereto. 3. The Designee (i) confirms that it has received a copy of the Credit Agreement, together with copies of the financial statements referred to in Section 4.01 thereof and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Designation Agreement; (ii) agrees that it will, independently and without reliance upon the Agent, the Designor 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 Credit Agreement; (iii) confirms that it is a Designated Bidder; (iv) appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Credit Agreement as are delegated to the Agent by the terms thereof, together with such powers and discretion as are reasonably incidental thereto; and (v) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Credit Agreement are required to be performed by it as a Lender. 4. Following the execution of this Designation Agreement by the Designor and its Designee, it will be delivered to the Agent for acceptance and recording by the Agent. The effective date for this Designation Agreement (the "Effective Date") shall be the date of acceptance hereof by the Agent, unless otherwise specified on the signature page hereto. 5. Upon such acceptance and recording by the Agent, as of the Effective Date, the Designee shall be a party to the Credit Agreement with a right to make Competitive Bid Advances as a Lender pursuant to Section 2.03 of the Credit Agreement and the rights and obligations of a Lender related thereto. 6. This Designation Agreement shall be governed by, and construed in accordance with, the laws of the State of New York. 7. This Designation 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 Designation Agreement by telecopier shall be effective as delivery of a manually executed counterpart of this Designation Agreement. IN WITNESS WHEREOF, the Designor and the Designee have caused this Designation Agreement to be executed by their officers thereunto duly authorized as of the date first above written. IN WITNESS WHEREOF, the Designor and the Designee have caused this Designation Agreement to be executed by their officers thereunto duly authorized as of the date first above written. Effective Date (3): _______________, 199__ [NAME OF DESIGNOR], as Designor By Title: [NAME OF DESIGNEE], as Designee By Title: Applicable Lending Office (and address for notices): [Address] Accepted this ____ day of _______________, 199_ _________________________, as Agent By Title: __________________ (3) This date should be no earlier than five Business Days after the delivery of this Designation Agreement to the Agent. EXHIBIT E - FORM OF CERTIFICATE BY DTE ENERGY COMPANY DTE ENERGY COMPANY OFFICER'S CERTIFICATE I, _________________________, [Insert title of Financial Officer (as defined in the Credit Agreement)] of DTE ENERGY COMPANY, a Michigan corporation (the "Parent"), DO HEREBY CERTIFY, in connection with a Borrowing on this date under the Amended and Restated Credit Agreement dated as of January 21, 1998 among DTE Capital Corporation, the Banks parties thereto, Citibank, N.A., as agent for said Banks (the "Credit Agreement", the terms defined therein being used herein as therein defined), that: 1. The Parent 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 Parent of the Support Agreement, and the consummation of the transactions contemplated hereby and thereby, are within the Parent's corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (i) the Parent's charter or by-laws or (ii) law or any contractual restriction binding on or affecting the Parent. 3. All governmental and third party consents and approvals necessary in connection with the transactions EXHIBIT E - FORM OF CERTIFICATE BY DTE ENERGY COMPANY DTE ENERGY COMPANY OFFICER'S CERTIFICATE I, _________________________, [Insert title of Financial Officer (as defined in the Credit Agreement)] of DTE ENERGY COMPANY, a Michigan corporation (the "Parent"), DO HEREBY CERTIFY, in connection with a Borrowing on this date under the Amended and Restated Credit Agreement dated as of January 21, 1998 among DTE Capital Corporation, the Banks parties thereto, Citibank, N.A., as agent for said Banks (the "Credit Agreement", the terms defined therein being used herein as therein defined), that: 1. The Parent 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 Parent of the Support Agreement, and the consummation of the transactions contemplated hereby and thereby, are within the Parent's corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (i) the Parent's charter or by-laws or (ii) law or any contractual restriction binding on or affecting the Parent. 3. All governmental and third party consents and approvals necessary in connection with the transactions contemplated by the Support Agreement and the other Loan Documents to which the Parent is a party 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 that restrains, prevents or imposes materially adverse conditions upon the Parent with respect to the transactions contemplated by the Loan Documents to which it is a party. 4. The Support Agreement has been, and each of the other Loan Documents to which the Parent is a party when delivered pursuant to the Credit Agreement will have been, duly executed and delivered by the Parent. The Support Agreement is, and each of the other Loan Documents to which it is a party when delivered hereunder will be, the legal, valid and binding obligation of the Parent enforceable against the Parent in accordance with their respective terms, subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditors rights generally. 5. The Consolidated balance sheet of the Parent and its Subsidiaries as at December 31, 1996, and the related Consolidated statements of income and cash flows of the Parent and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, independent public accountants, and the Consolidated balance sheet of the Parent and its Subsidiaries as at September 30, 1997 and the related Consolidated statements of income and cash flows of the Parent and its Subsidiaries for the nine months then ended, copies of which have been furnished to each Lender, attached hereto as Annex A are hereby duly certified by [Insert title of Financial Officer], as fairly presenting, subject in the case of said balance sheet as at September 30, 1997, and said statements of income and cash flows for the nine months then ended, to year-end audit adjustments, the Consolidated financial condition of the Parent and its Subsidiaries as at such dates and the Consolidated results of the operations of the Parent and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 1996 there has been no Material Adverse Change with respect to the Parent. IN WITNESS WHEREOF, I have signed this certificate this 21st day of January, 1998. [Title:]