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EXHIBIT 99-32
[EXECUTION COPY]
SIXTH AMENDMENT
364-DAY CREDIT AGREEMENT
SIXTH AMENDMENT (this "AMENDMENT"), dated as of August 27, 1998, 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, the Fourth
Amendment dated as of August 29, 1996 and the Fifth Amendment dated as of August
28, 1997, 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 and to effect certain other amendments to the Existing Credit Agreement;
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 26, 1999.
(b) AMENDMENT OF SECTION 2.04(a). Section 2.04(a) of the
Existing Agreement is hereby amended to read in its entirety as follows:
2.04. FACILITY FEE. (a) The Borrower agrees to pay to the
Agent for the account of each Bank a facility fee (the "FACILITY FEE")
on the full amount of
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such Bank's Commitment (whether used or unused), from the date hereof
in the case of each Bank listed on the signature pages hereto, and from
the effective date specified in the Assignment and Acceptance pursuant
to which it became a Bank pursuant to Section 9.07 hereof in the case
of any other Bank, until the Termination Date or earlier termination of
such Bank's Commitment pursuant to Section 2.05, payable on the basis
of the actual number of days elapsed in a year of 365 or 366 days, on
the last Business Day of March, June, September and December in each
year and on the Termination Date, at the rate per annum set forth below
as determined in accordance with the then applicable Ratings Level:
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RATINGS LEVEL I II III
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FACILITY FEE 0.15% 0.15% 0.30%
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provided, however, that during any period in which the Guarantor's
Senior Secured Indebtedness unsupported by letters of credit or similar
credit enhancement facilities is rated at or below BB+ by S&P or at or
below Ba-1 by Xxxxx'x, or shall cease to be rated by either or both,
the Facility Fee shall be 0.425% per annum.
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.
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(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 26, 1999.
(h) Such other instruments, opinions or documents as any Bank through
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;
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(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 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.
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SECTION 7. GOVERNING LAW. This Amendment shall be governed
by, and construed in accordance with, the laws of the State of New York.
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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
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Title:
THE DETROIT EDISON COMPANY,
as Guarantor
By
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Title:
[BANK SIGNATURE PAGES OMITTED.]
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ANNEX I
[SCOPE OF OPINION OF COUNSEL TO THE BORROWER]
The Opinion of Counsel to the Borrower referred to in Section 2(d) of this
Amendment shall re-affirm, as of the date of this Amendment, the opinions
expressed in the opinion of such counsel previously delivered pursuant to
Section 3.01(m) of the Existing Credit Agreement, except that, for purposes of
such re-affirmation, (i) the "Transaction Documents" shall be stated to include
this Amendment and (ii) references in such opinions to the "Credit Agreement"
shall be stated to refer to the Amended Credit Agreement.
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ANNEX II
[SCOPE OF OPINION OF COUNSEL TO THE GUARANTOR]
The Opinion of Counsel to the Guarantor referred to in Section 2(e) of this
Amendment shall be to the effect that:
(a) The execution and delivery by the Guarantor of this Amendment,
and the performance by the Guarantor 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 the Guarantor is a party are the Guarantor's legal,
valid and binding obligations, enforceable against the Guarantor 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 the Guarantor
of this Amendment;
(d) (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
through the Termination Date as extended by this Amendment the Guarantee set
forth in Section 6.02 of the Credit Agreement and to perform its obligations
thereunder;
AND such opinion of counsel to the Guarantor shall re-affirm, as of the date of
this Amendment, the opinions expressed in paragraphs 1, 4, 5 and 6 of the
opinion of such counsel previously delivered pursuant to Section 3.01(n) of the
Existing Credit Agreement.
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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. SIXTH AMENDMENT
00
X - 0
XXXXXXXX XXXX XXX,
XXX XXXX BRANCH,
as Agent and as Bank
By____________________
Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. SIXTH AMENDMENT
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X - 0
XXX XXXX XX XXX XXXX
By____________________
Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. SIXTH AMENDMENT
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X - 0
XXX XXXX XX XXXX XXXXXX
By____________________
Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. SIXTH AMENDMENT
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BHF-BANK AKTIENGESELLSCHAFT
By______________________
Title:
By______________________
Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. SIXTH AMENDMENT
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X - 0
XXX XXXXX XXXXXXXXX XXXX
By______________________
Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. SIXTH AMENDMENT
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CITIBANK, N.A.
By_____________________
Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. SIXTH AMENDMENT
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COMERICA BANK
By_____________________
Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. SIXTH AMENDMENT
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THE DAI-ICHI KANGYO BANK, LTD.
By_____________________
Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. SIXTH AMENDMENT
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X - 00
THE FIRST NATIONAL BANK OF CHICAGO
By_____________________
Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. SIXTH AMENDMENT
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THE FUJI BANK, LIMITED
By_____________________
Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. SIXTH AMENDMENT
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X - 00
XXX XXXXXXXXXX XXXX XX XXXXX
By_____________________
Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. SIXTH AMENDMENT
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X - 00
THE LONG-TERM CREDIT BANK OF JAPAN,
LTD.
By_____________________
Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. SIXTH AMENDMENT
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X - 00
XXXXXX XXXXXXXX XXXXX XXXXXXX
XX XXX XXXX
By_____________________
Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. SIXTH AMENDMENT
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THE NORTHERN TRUST COMPANY
By____________________
Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. SIXTH AMENDMENT
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SOCIETE GENERALE
By_____________________
Title:
By_____________________
Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. SIXTH AMENDMENT
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X - 00
XXXXXXX XXXXXXXX (XXXXX), INC.
By_____________________
Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. SIXTH AMENDMENT
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UNION BANK OF CALIFORNIA, N.A.
By_____________________
Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. SIXTH AMENDMENT
