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EXHIBIT 99.24
[EXECUTION COPY]
FIFTH AMENDMENT
MULTI-YEAR CREDIT AGREEMENT
FIFTH AMENDMENT (this "AMENDMENT"), dated as of September 1, 1997, to
the MULTI-YEAR CREDIT AGREEMENT dated as of September 1, 1993, as amended by
the First Amendment, dated as of September 1, 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 September 1, 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 () 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 September 1, 2001.
(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:
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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 a one-year extension of such Termination Date. 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
Acceptance, together with any Notes subject to such assignment.
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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 September 1, 1998, 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
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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 ()_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;
(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: () the FERC Authorization is in
full force and effect and () 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
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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.
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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:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. FIFTH AMENDMENT
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BARCLAYS BANK PLC,
NEW YORK BRANCH,
as Agent and as Bank
By
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Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. FIFTH AMENDMENT
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BANK OF AMERICA NATIONAL
TRUST & SAVINGS ASSOCIATION
By
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Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. FIFTH AMENDMENT
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THE BANK OF NEW YORK
By
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Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. FIFTH AMENDMENT
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THE BANK OF NOVA SCOTIA
By
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Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. FIFTH AMENDMENT
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BHF-BANK AKTIENGESELLSCHAFT
By
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Title:
By
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Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. FIFTH AMENDMENT
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THE CHASE MANHATTAN BANK
By
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Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. FIFTH AMENDMENT
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CITIBANK, N.A.
By
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Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. FIFTH AMENDMENT
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COMERICA BANK
By
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Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. FIFTH AMENDMENT
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THE FIRST NATIONAL BANK OF CHICAGO
By
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Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. FIFTH AMENDMENT
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THE FUJI BANK, LIMITED
By
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Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. FIFTH AMENDMENT
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THE LONG-TERM CREDIT BANK OF JAPAN,
LTD.
By
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Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. FIFTH AMENDMENT
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MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By
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Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. FIFTH AMENDMENT
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SOCIETE GENERALE
By
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Title:
By
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Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. FIFTH AMENDMENT
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THE SUMITOMO BANK, LTD.,
NEW YORK BRANCH
By
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Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. FIFTH AMENDMENT
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TORONTO DOMINION (TEXAS), INC.
By
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Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. FIFTH AMENDMENT
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UNION BANK OF CALIFORNIA, N.A.
By
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Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. FIFTH AMENDMENT
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WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
By
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Title:
By
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Title:
SIGNATURE PAGE TO RENAISSANCE ENERGY CO. FIFTH AMENDMENT