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EXHIBIT 4-208
[EXECUTION COPY]
AMENDMENT TO
STANDBY NOTE PURCHASE CREDIT FACILITY
AMENDMENT (this "AMENDMENT"), dated as of October 24, 2000, to the
STANDBY NOTE PURCHASE CREDIT FACILITY, dated as of October 26, 1999, among THE
DETROIT EDISON COMPANY, a Michigan corporation (the "COMPANY"), the banks party
thereto (the "BANKS"), and BARCLAYS BANK PLC, as administrative agent (the
"ADMINISTRATIVE 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").
W I T N E S S E T H
WHEREAS, the Company, the Banks and the Administrative Agent have
previously entered into the Existing Credit Agreement; and
WHEREAS, the Company, the Banks and the Administrative Agent now wish
to amend the Existing Credit Agreement to extend the Termination Date described
therein and change the amount of the Facility Fee provided for therein;
NOW THEREFORE, the Company, the Banks and the Administrative 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. Effective as of the
date hereof, and subject to the satisfaction of the conditions precedent set
forth in Section 2 hereof:
(a) The definition of Termination Date is hereby amended and restated
to read in its entirety as follows:
"TERMINATION DATE" means the earlier to occur of October 23, 2001, as
such date may be extended pursuant to Section 2.04, and the date of termination
in whole of the Commitments pursuant to Section 2.02(b) or 7.02.
(b) The definition of "Applicable Rate" is hereby amended by replacing
the grid set forth therein in its entirety with the following grid:
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<TABLE>
<CAPTION>
======================= ==================================== ====================== ======================
Applicable Applicable Rate for Applicable Rate for
Rating S&P Rating/Moody's Rating Eurodollar Rate Facility Fee
Level Advances
======================= ==================================== ====================== ======================
<S> <C> <C> <C>
I A+ and A1, or higher 0.375% 0.175%
----------------------- ------------------------------------ ---------------------- ----------------------
II BBB+ and Baa1, or higher 0.475% 0.200%
----------------------- ------------------------------------ ---------------------- ----------------------
III BBB- and Baa3, or higher 0.500% 0.300%
----------------------- ------------------------------------ ---------------------- ----------------------
IV BB+ or Ba1, or lower, or not 0.825% 0.475%
rated by either S&P's or Moody's
or both
----------------------- ------------------------------------ ---------------------- ----------------------
</TABLE>
SECTION 2. CONDITIONS OF EFFECTIVENESS. This Amendment shall become
effective as of the date set forth above when, and only when, the Administrative
Agent shall have received (in sufficient copies for each Bank) the following:
(a) Counterparts of this Amendment executed by the Company and all of
the Banks.
(b) Certified copies of the resolutions of the Board of Directors of
the Company 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 Company.
(c) An Officer's Certificate of the Company dated as of the date set
forth above as to the matters set forth in Sections 3(d) and 3(e) of this
Amendment.
(d) A favorable opinion of counsel to the Company, to the effect set
forth in Exhibit A to this Amendment, and as to such other matters as any Bank
through the Administrative Agent may reasonably request.
(e) Payment to the Administrative Agent for the account of the Banks of
an amendment fee in the amount of .05 of one percent of the aggregate amount of
the Commitments as of the date hereof.
(f) Such other approvals, opinions and documents as the Majority Banks,
through the Administrative Agent, may reasonably request as to the legality,
validity, binding effect or enforceability of this Amendment, the Amended Credit
Agreement or any other Related Document or the financial condition, properties,
operations or prospects of the Company.
SECTION 3. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants 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 Related
Documents to which it is a party are within its corporate powers, have been duly
authorized by all necessary corporate or other similar action,
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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
Related 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, approval or other action
by, and no notice to or filing with, any governmental authority or regulatory
body is required for the due execution, delivery and performance by the Company
of the Amendment or the Amended Credit Agreement, except such as have been duly
obtained or made and are in full force and effect;
(d) The representations and warranties contained in Section 5.01 of the
Existing Credit Agreement are true and correct in all material respects on and
as of the date of this Amendment, both before and after giving effect to this
Amendment, as though made on and as of such date; and
(e) No event in respect of it has occurred and is continuing, or, after
giving effect to this Amendment, shall occur, that constitutes an Event of
Default or, with the giving of notice or lapse of time or both, will constitute
an Event of Default.
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 Amended 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 Related 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 Amended Credit Agreement
and all other Related 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 Administrative Agent under any of the Related
Documents, nor constitute a waiver of any provision of any of the Related
Documents.
SECTION 5. COSTS AND EXPENSES. The Company agrees to pay on demand all
reasonable costs and expenses of the Administrative 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
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reasonable fees and out-of-pocket expenses of counsel for the Administrative
Agent with respect thereto and with respect to advising the Administrative 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.
[Signature page follows]
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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,
THE DETROIT EDISON COMPANY
By
-----------------------------------------
Name:
Title:
OCTOBER, 2000 AMENDMENT TO DETROIT EDISON COMPANY
STANDBY NOTE PURCHASE CREDIT FACILITY
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BARCLAYS BANK PLC,
as Administrative Agent and as Bank
By
-----------------------------------------
Name:
Title:
OCTOBER, 2000 AMENDMENT TO DETROIT EDISON COMPANY
STANDBY NOTE PURCHASE CREDIT FACILITY
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ABU DHABI INTERNATIONAL
BANK INC.
By
-----------------------------------------
Name:
Title:
By
-----------------------------------------
Name:
Title:
OCTOBER, 2000 AMENDMENT TO DETROIT EDISON COMPANY
STANDBY NOTE PURCHASE CREDIT FACILITY
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THE BANK OF NEW YORK
By
-----------------------------------------
Name:
Title:
OCTOBER, 2000 AMENDMENT TO DETROIT EDISON COMPANY
STANDBY NOTE PURCHASE CREDIT FACILITY
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THE BANK OF NOVA SCOTIA
By
-----------------------------------------
Name:
Title:
OCTOBER, 2000 AMENDMENT TO DETROIT EDISON COMPANY
STANDBY NOTE PURCHASE CREDIT FACILITY
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BANK ONE, NA
(Main Office Chicago)
By
-----------------------------------------
Name:
Title:
OCTOBER, 2000 AMENDMENT TO DETROIT EDISON COMPANY
STANDBY NOTE PURCHASE CREDIT FACILITY
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BAYERISCHE LANDESBANK
GIROZENTALE
By
-----------------------------------------
Name:
Title:
By
-----------------------------------------
Name:
Title:
OCTOBER, 2000 AMENDMENT TO DETROIT EDISON COMPANY
STANDBY NOTE PURCHASE CREDIT FACILITY
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THE INDUSTRIAL BANK OF
JAPAN, LTD.
By
-----------------------------------------
Name:
Title:
OCTOBER, 2000 AMENDMENT TO DETROIT EDISON COMPANY
STANDBY NOTE PURCHASE CREDIT FACILITY
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SOCIETE GENERALE
By
-----------------------------------------
Name:
Title:
OCTOBER, 2000 AMENDMENT TO DETROIT EDISON COMPANY
STANDBY NOTE PURCHASE CREDIT FACILITY
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BANC ONE CAPITAL MARKETS, INC.,
as Remarketing Agent
By
-----------------------------------------
Name:
Title:
OCTOBER, 2000 AMENDMENT TO DETROIT EDISON COMPANY
STANDBY NOTE PURCHASE CREDIT FACILITY
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BARCLAYS CAPITAL INC.,
as Remarketing Agent
By
-----------------------------------------
Name:
Title:
OCTOBER, 2000 AMENDMENT TO DETROIT EDISON COMPANY
STANDBY NOTE PURCHASE CREDIT FACILITY
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LEHMAN BROTHERS INC.,
as Remarketing Agent
By
-----------------------------------------
Name:
Title:
OCTOBER, 2000 AMENDMENT TO DETROIT EDISON COMPANY
STANDBY NOTE PURCHASE CREDIT FACILITY
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EXHIBIT A
[SCOPE OF OPINION OF COUNSEL TO THE COMPANY]
Each Bank shall receive a favorable opinion, dated the date of the
Amendment, of the Associate General Counsel for the Company, to the following
effect and otherwise in form and substance satisfactory to such Bank:
(a) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the State
of Michigan, and is duly qualified to do business as a foreign
corporation in each jurisdiction in which the nature of the business
conducted or the property owned, operated or leased by it requires such
qualification, except to the extent that the failure to be so qualified
or be in good standing would not have a material adverse effect on the
Company and its consolidated subsidiaries, taken as a whole.
(b) The execution, delivery and performance by the Company of
the Amendment and the Amended Credit Agreement are within the Company's
corporate powers, have been duly authorized by all necessary corporate
action and do not contravene (i) the articles of incorporation or
by-laws of the Company, or (ii) any law, rule or regulation applicable
to the Company or (iii) any contractual or legal restriction binding on
or affecting the Company or any of its subsidiaries. The Amendment and
the Amended Credit Agreement have been duly executed and delivered by
the Company.
(c) No authorization, approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
is required for the due execution, delivery and performance by the
Company of the Amendment or the Amended Credit Agreement, except such
as have been duly obtained or made and are in full force and effect.
(d) Each of the Amendment and the Amended Credit Agreement
constitutes the legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except as
the enforceability thereof may be limited by (i) applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or
similar laws affecting creditors' rights generally and (ii) the effect
of general principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and fair dealing
(regardless of whether considered in a proceeding in equity or at law).
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(e) Except and to the extent specifically described in written
reports of the Company filed with the United States Securities and
Exchange Commission as of the date of the Amendment, such counsel is
not aware, after due inquiry, of any pending or overtly threatened
actions or proceedings against the Company or its consolidated
subsidiaries, or any of their respective properties, before any court,
governmental agency or arbitrator which purport to affect the legality,
validity, binding effect or enforceability of the Amendment or the
Amended Credit Agreement or which are likely to have a material adverse
effect upon the financial condition or operations of the Company and
its consolidated subsidiaries, taken as a whole, or the ability of the
Company to perform its obligations under the Amendment or the Amended
Credit Agreement.
(f) Purchased Notes at any time purchased for the account of
the Banks in accordance with the terms of the Amended Credit Agreement
will constitute legal, valid and binding obligations of the Company,
enforceable in accordance with their respective terms, in the amount
of, and evidencing the obligation of the Company to repay, the Advances
made by the Banks to the Remarketing Agents for the purpose of
purchasing such Purchased Notes.
(g) Assuming that the trustee under the Note Indenture holds the general
and refunding mortgage bond issued pursuant to the Mortgage (such bond
being the "PLEDGED BOND"), the Mortgage creates a valid and perfected
first priority security interest in the Pledged Bond. All holders of
Purchased Notes will be entitled to the full benefits of such valid and
perfected first priority security interest in the Pledged Bond, as so
created by the Note Indenture.
Capitalized terms used but not defined herein shall have the meanings assigned
to such terms in the Amended Credit Agreement.
