1
EXHIBIT 99.25
[EXECUTION COPY]
FIFTH AMENDMENT
364-DAY CREDIT AGREEMENT
FIFTH AMENDMENT (this "AMENDMENT"), dated as of August 28, 1997, to the
364-DAY CREDIT AGREEMENT dated as of September 1, 1993, as amended by the First
Amendment, dated as of August 31, 1994, certain extension letters, each dated
June 30, 1995, the Third Amendment, dated as of March 8, 1996, and the Fourth
Amendment dated as of August 29, 1996, by and among RENAISSANCE ENERGY COMPANY,
a Delaware corporation (the "BORROWER"), THE DETROIT EDISON COMPANY, a Michigan
corporation (the "GUARANTOR"), the banks referred to therein (the "BANKS"), and
BARCLAYS BANK PLC, New York Branch, as agent (the "AGENT") for the Banks (such
Credit Agreement, as heretofore amended, being hereinafter referred to as the
"EXISTING CREDIT AGREEMENT", and, as amended by this Amendment, as the "AMENDED
CREDIT AGREEMENT" or the "CREDIT AGREEMENT").
W I T N E S S E T H
WHEREAS, the Borrower, the Guarantor, the Banks and the Agent have
previously entered into the Existing Credit Agreement; and
WHEREAS, the Borrower, the Guarantor, the Banks and the Agent now wish to
amend the Existing Credit Agreement to extend the Termination Date described
therein;
NOW THEREFORE, the Borrower, the Guarantor, the Banks and the Agent agree
as follows (capitalized terms used but not defined in this Amendment having the
meanings assigned them in the Existing Credit Agreement):
SECTION 1. AMENDMENTS TO EXISTING CREDIT AGREEMENT. (a) EXTENSION OF
TERMINATION DATE. Effective as of the date hereof, and subject to the
satisfaction of the conditions precedent set forth in Section 2 hereof, the
Termination Date is hereby extended to August 27, 1998.
(b) AMENDMENT OF SECTION 2.15. Section 2.15 of the Existing Agreement is
hereby amended and restated to read in its entirety as follows:
2
SECTION 2.15. EXTENSION OF TERMINATION DATE (a) Unless the
Termination Date shall have occurred, at least 30 but not more than 60
Days prior to the Termination Date then in effect, the Borrower, by
written notice to the Agent consented and agreed to by the Guarantor,
may request the Banks to consent to an extension of such Termination
Date to the last Business Day occurring not more than 364 days after the
Termination Date then in effect. Not earlier than 30 days preceding the
Termination Date then in effect, each Bank may, in its sole and absolute
discretion, determine whether to consent to the Borrower's request for
extension of the Termination Date and may by written notice (a "CONSENT
NOTICE") to the Agent and the Borrower delivered only after such 30th
preceding day but prior to the Termination Date as then in effect notify
the Agent and the Borrower of its determination. Failure by any Bank to
deliver a Consent Notice as aforesaid shall be deemed to be a denial of
the Borrower's request by such Bank. If the Majority Banks shall have
delivered Consent Notices, then, subject to the satisfaction of the
conditions precedent set forth in Section 3.05 and as to such consenting
Banks only, the Termination Date shall be so extended (and the Agent
shall so notify the Banks), such extension to be effective as of the
Termination Date theretofore in effect.
(b) In the event any Bank shall fail to deliver a Consent Notice in
respect of any extension requested by the Borrower pursuant to Section
2.15(a) (a "DISSENTING BANK"), the Borrower shall have the right to
arrange with an Eligible Bank or Eligible Banks acceptable to the
Borrower and the Agent to assume all or a part of such Bank's
obligations under this Agreement. If the Agent shall not arrange for a
substituted bank or banks to assume the obligations of a Dissenting
Bank, then (i) the Commitment of such Dissenting Bank shall terminate on
the Termination Date in effect immediately before such extension, (ii)
the Borrower shall repay in full on such Termination Date all Advances
by such Dissenting Bank and all other amounts payable to such Dissenting
Bank under this Agreement, and (iii) such Dissenting Bank shall not be
obligated to make any Advances the maturity date of which would be later
than such Termination Date. In such case each remaining Bank's
Commitment Percentage for the period of such extension shall be changed
so as to equal that percentage which such remaining Bank's Commitment
hereunder represents of the total Commitments of all remaining Banks who
have agreed to such extension. If the Agent shall arrange with an
Eligible Bank or Eligible Banks to assume all or part of the obligations
of any Dissenting Bank, then such Dissenting Bank and such Eligible Bank
or Eligible Banks shall execute and deliver to the Agent, for its
acceptance and recording in the Register, an Assignment and
3
3
Acceptance, together with any Notes subject to such assignment.
SECTION 2. CONDITIONS OF EFFECTIVENESS. This Amendment shall become
effective as of the date set forth above when, and only when, the Agent shall
have received (in sufficient copies for each Bank) the following:
(a) Counterparts of this Amendment executed by the Borrower, the Guarantor
and all of the Banks.
(b) Certified copies of the resolutions of the Board of Directors of the
Borrower authorizing this Amendment and of all documents evidencing other
necessary corporate action and governmental and regulatory approvals required
to be obtained by it in connection therewith, certified by the Secretary or
Assistant Secretary of the Borrower.
(c) Certified copies of the resolutions of the Board of Directors of the
Guarantor authorizing this Amendment and of all documents evidencing other
necessary corporate action and governmental and regulatory approvals required
to be obtained by it in connection therewith, certified by the Secretary or
Assistant Secretary of the Guarantor.
(d) A favorable opinion of counsel to the Borrower, to the effect set
forth in Annex I to this Amendment and as to such other matters relating to the
transactions contemplated hereby as any Bank through the Agent may reasonably
request.
(e) A favorable opinion of the General Counsel of the Guarantor, to the
effect set forth in Annex II to this Amendment and as to such other matters
relating to the transactions contemplated hereby as any Bank through the Agent
may reasonably request.
(f) Evidence satisfactory to the Agent and its counsel that the Guarantor
has extended, through the Termination Date as extended hereby, the Guarantee
set forth in Section 6.02 of the Existing Agreement.
(g) Evidence that the "Expiration Date" of the Heat Purchase Contract has
been extended to August 27, 1998 and that the "Outside Expiration Date" of the
Heat Purchase Contract has been extended to September 1, 2001.
(h) Such other instruments, opinions or documents as any Bank through
4
4
the Agent may reasonably request.
SECTION 3. REPRESENTATIONS AND WARRANTIES. Each of the Borrower and the
Guarantor represents and warrants, as to itself only, as follows:
(a) The execution and delivery by it of this Amendment, and the
performance by it of the Amended Credit Agreement and the other Financing
Documents to which it is a party are within its corporate powers, have been
duly authorized by all necessary corporate or other similar action, and do not
and will not contravene (i) its charter or by-laws, as the case may be, or any
law or legal restriction or (ii) any contractual restriction binding on or
affecting it or its properties;
(b) This Amendment has been duly executed and delivered by it, and,
assuming the due execution and delivery by the Banks pursuant to due authority
of this Amendment, this Amendment, the Amended Credit Agreement and the other
Financing Documents to which it is a party are its legal, valid and binding
obligations, enforceable against it in accordance with their respective terms;
subject to the effect of any applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally;
(c) No consent, license, order, authorization or approval or other action
by, and no notice to or filing with, any governmental authority or regulatory
body is required for the due execution and delivery by it of this Amendment;
(d) Its representations and warranties contained in Section 4.01 (in the
case of the Borrower) or Section 4.02 (in the case of the Guarantor) of the
Existing Credit Agreement are true and correct in all material respects on and
as of the date of this Amendment, as though made on and as of such date;
(e) No event in respect of it has occurred and is continuing, which
constitutes an Event of Default or a Default; and
(f) In the case of the Guarantor: (i) the FERC Authorization is in full
force and effect and (ii) without regard to any further extension thereof, the
FERC Authorization as presently in effect is sufficient to authorize: (A) the
creation, validity and performance of the Guarantee described in Section 6.01
of the Amended Credit Agreement in respect of each Advance made on or prior to
the Termination Date, as extended by this Amendment, (B) the Guarantor to
perform its obligations under the Credit Agreement and the other Financing
Documents in respect of each such Advance and the corresponding Guarantee, and
(C) the Guarantor to extend
5
5
through the Termination Date as extended hereby the Guarantee set forth in
Section 6.02 of the Credit Agreement and to perform its obligations thereunder.
SECTION 4. REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS. (a) Upon the
effectiveness of this Amendment in accordance with Section 2 hereof, on and
after the date hereof each reference in the Credit Agreement to "this
Agreement", "hereunder", "hereof" or words of like import referring to the
Existing Credit Agreement, and each reference in the Notes and the other
Financing Documents to "the Credit Agreement", "thereunder", "thereof" or words
of like import referring to the Existing Credit Agreement, shall mean and be a
reference to the Amended Credit Agreement.
(b) Except as specifically amended above, the Credit Agreement and all
other Financing Documents are and shall continue to be in full force and effect
and are hereby in all respects ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall not,
except as expressly provided herein, operate as a waiver of any right, power or
remedy of any Bank or the Agent under any of the Financing Documents, nor
constitute a waiver of any provision of any of the Financing Documents.
SECTION 5. COSTS AND EXPENSES. The Borrower agrees to pay on demand all
reasonable costs and expenses of the Agent in connection with the preparation,
execution, delivery, administration, modification and amendment of this
Amendment and the other instruments and documents to be delivered hereunder,
including, without limitation, the reasonable fees and out-of-pocket expenses
of counsel for the Agent with respect thereto and with respect to advising the
Agent and the Banks as to their respective rights and responsibilities
hereunder and thereunder.
SECTION 6. EXECUTION IN COUNTERPARTS. This Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to
be an original and all of which taken together shall constitute but one and the
same agreement.
SECTION 7. GOVERNING LAW. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
6
S - 1
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written,
RENAISSANCE ENERGY COMPANY
By
-------------------------------------------
Title:
THE DETROIT EDISON COMPANY,
as Guarantor
By
-------------------------------------------
Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. FIFTH AMENDMENT
7
S - 2
BARCLAYS BANK PLC,
NEW YORK BRANCH,
as Agent and as Bank
By
-------------------------------------------
Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. FIFTH AMENDMENT
8
S - 3
BANK OF AMERICA NATIONAL
TRUST & SAVINGS ASSOCIATION
By
-------------------------------------------
Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. FIFTH AMENDMENT
9
S - 4
THE BANK OF NEW YORK
By
------------------------------------------
Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. FIFTH AMENDMENT
00
X - 0
XXX XXXX XX XXXX XXXXXX
By
-------------------------------------------
Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. FIFTH AMENDMENT
11
S - 6
BHF-BANK AKTIENGESELLSCHAFT
By
-------------------------------------------
Title:
By
-------------------------------------------
Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. FIFTH AMENDMENT
12
S - 7
THE CHASE MANHATTAN BANK
By
-------------------------------------------
Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. FIFTH AMENDMENT
13
S - 8
CITIBANK, N.A.
By
-------------------------------------------
Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. FIFTH AMENDMENT
14
S - 9
COMERICA BANK
By
-------------------------------------------
Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. FIFTH AMENDMENT
15
S - 10
THE FIRST NATIONAL BANK OF CHICAGO
By
-------------------------------------------
Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. FIFTH AMENDMENT
16
S - 11
THE FUJI BANK, LIMITED
By
------------------------------------------
Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. FIFTH AMENDMENT
17
S - 12
THE LONG-TERM CREDIT BANK OF JAPAN,
LTD.
By
-------------------------------------------
Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. FIFTH AMENDMENT
18
S - 13
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By
-------------------------------------------
Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. FIFTH AMENDMENT
19
S - 14
SOCIETE GENERALE
By
-------------------------------------------
Title:
By
-------------------------------------------
Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. FIFTH AMENDMENT
20
S - 15
THE SUMITOMO BANK, LTD.,
NEW YORK BRANCH
By
---------------------------------------------
Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. FIFTH AMENDMENT
00
X - 00
XXXXXXX XXXXXXXX (XXXXX), INC.
By
-------------------------------------------
Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. FIFTH AMENDMENT
22
S - 17
UNION BANK OF CALIFORNIA, N.A.
By
-------------------------------------------
Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. FIFTH AMENDMENT
00
X - 00
XXXXXXXXXXXX XXXXXXXXXX
XXXXXXXXXXXX, XXX XXXX BRANCH
By
-------------------------------------------
Title:
By
-------------------------------------------
Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. FIFTH AMENDMENT
