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EXHIBIT 99.11
EXECUTION COPY
THIRD AMENDMENT
364-DAY CREDIT AGREEMENT
THIRD AMENDMENT (this "AMENDMENT"), dated as of March 8, 1996, to the
364-DAY CREDIT AGREEMENT dated as of September 1, 1993, as amended by the First
Amendment, dated as of August 31, 1994, and the extension letters (the
"EXTENSION LETTERS"), each dated June 30, 1995, 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 in certain particulars;
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 Amendments to the Existing Credit Agreement. THE EXISTING
CREDIT AGREEMENT IS, EFFECTIVE AS OF THE DATE HEREOF, AND SUBJECT TO THE
SATISFACTION OF THE CONDITIONS PRECEDENT SET FORTH IN SECTION 2 HEREOF, HEREBY
AMENDED AS FOLLOWS:
a) Section 1.01. The definition of "APPLICABLE MARGIN" contained in
Section 1.01 is hereby amended in full to read as follows:
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"APPLICABLE MARGIN" means for the Interest Period of an Adjusted
CD Rate Advance or a Eurodollar Rate Advance the percentage per annum
set forth in the applicable column below:
RATINGS LEVEL I II III
- -------------------------------------------
EURODOLLAR
RATE ADVANCE 0.20% 0.25% 0.35%
ADJUSTED CD
RATE ADVANCE 0.325% 0.375% 0.475%
Section 2.04(a). Section 2.04(a) is hereby amended in full to read as
follows:
b) SECTION 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 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:
RATINGS LEVEL I II III
- ---------------------------------------------------
FACILITY FEE 0.10% 0.10% 0.25%
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 Moody's, or shall cease to be rated by either
or both, the Facility Fee shall be 0.375% per annum.
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c) Section 2.11(d). Section 2.11(d) is hereby amended by deleting in its
entirety the phrase "such extension of time shall in such case be included
in the computation of payment of interest or commitment fee, as the case may
be" and substituting therefor the new phrase "such extension of time shall
in such case be included in the computation of payment of interest".
d) Section 9.07(f). Section 9.07(f) is hereby amended by deleting in its
entirety the phrase "reducing the Facility Fee or Commitment Fee referred to
in Section 2.04(a) hereof" and substituting therefor the new phrase
"reducing the Facility Fee referred to in Section 2.04(a) hereof".
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 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
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contemplated hereby as any Bank through the Agent may reasonably
request.
f) Evidence that the "Expiration Date" of the Heat Purchase
Contract has been extended to August 29, 1996 and that the "Outside
Expiration Date" of the Heat Purchase Contract has been extended to
September 1, 1999.
g) 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:
(1) 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 ITS CHARTER OR
BY-LAWS, AS THE CASE MAY BE, OR ANY LAW OR LEGAL RESTRICTION OR ANY
CONTRACTUAL RESTRICTION BINDING ON OR AFFECTING IT OR ITS PROPERTIES;
a) 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;
b) 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;
c) 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;
and
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d) No event in respect of it has occurred and is continuing, which
constitutes an Event of Default or a Default.
SECTION e) REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS. 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.
f) 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. Without
limiting the generality of the foregoing, each of the parties hereto hereby
ratifies and confirms the extension of the Termination Date to August 29,
1996 pursuant to the Extension Letters.
g) 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 4. 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.
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SECTION 5. 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 6. 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
Title:
THE DETROIT EDISON COMPANY,
as Guarantor
By
Title:
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S-2
BARCLAYS BANK PLC,
NEW YORK BRANCH,
as Agent and as Bank
By
________ Title:
By
________ Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. THIRD AMENDMENT
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S-3
BANK OF AMERICA NT & SA
By
_____________ Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. THIRD AMENDMENT
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S-4
THE BANK OF NEW YORK
By
_____________ Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. THIRD AMENDMENT
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S-5
BHF-BANK AKTIENGESELLSCHAFT
By
_____________ Title:
By
_____________ Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. THIRD AMENDMENT
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S-6
THE CHASE MANHATTAN BANK, N.A.
By
_____________ Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. THIRD AMENDMENT
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S-7
CITIBANK, N.A.
By
_____________ Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. THIRD AMENDMENT
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S-8
COMERICA BANK
By
_____________ Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. THIRD AMENDMENT
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S-9
THE FIRST NATIONAL BANK OF CHICAGO
By
_____________ Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. THIRD AMENDMENT
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S-10
THE FUJI BANK, LIMITED
By
_____________ Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. THIRD AMENDMENT
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S-11
THE LONG-TERM CREDIT BANK OF JAPAN,
LTD.
By
_____________ Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. THIRD AMENDMENT
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S-12
J.P. MORGAN DELAWARE
By
_____________ Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. THIRD AMENDMENT
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S-13
NBD BANK
By
_____________ Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. THIRD AMENDMENT
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S-14
SOCIETE GENERALE
By
_____________ Title:
By
_____________ Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. THIRD AMENDMENT
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S-15
TORONTO DOMINION (TEXAS), INC.
By
_____________ Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. THIRD AMENDMENT
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S-16
UNION BANK
By
_____________ Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. THIRD AMENDMENT
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S-17
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
By
_____________ Title:
By
_____________ Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. THIRD AMENDMENT
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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:
(1) 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 ITS CHARTER
OR BY-LAWS, AS THE CASE MAY BE, OR ANY LAW OR LEGAL RESTRICTION OR ANY
CONTRACTUAL RESTRICTION BINDING ON OR AFFECTING IT OR ITS PROPERTIES;
a) 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;
b) 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;
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.