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EXHIBIT 99-42
AMENDMENT
Dated as of March 9th, 2001
This AMENDMENT among THE DETROIT EDISON COMPANY, a Michigan
corporation (the "Seller"), CITIBANK, N.A. ("Citibank"), and CITICORP NORTH
AMERICA, INC., as agent (the "Agent") for itself and Citibank.
PRELIMINARY STATEMENTS:
(1) The Seller, Citibank, and the Agent have entered into a
Trade Receivables Purchase and Sale Agreement, dated as of February 28, 1989,
and an Amendment and Restatement thereof, dated as of October 1, 1991, and as
further amended by an Amendment dated as of February 28, 1994, an Amendment
dated as of February 1, 1999, an Amendment dated as of January 27, 2000 and an
Amendment dated as of January 25, 2001 (said Trade Receivables Purchase and Sale
Agreement, as so amended and restated, being the "Agreement"; the terms defined
therein being used herein as therein defined unless otherwise defined herein).
(2) The Seller, Citibank and the Agent have agreed to amend
the Agreement as hereinafter set forth.
SECTION 2. Amendments to Agreement. (a) The definition of
"CAFCO Agreement" set forth in Section 1.01 of the Agreement is, effective as of
the date hereof, hereby amended to read as follows:
"CAFCO Agreement" means the Trade Receivables
Purchase and Sale Agreement, dated as of February 28, 1989, as
amended and restated as of October 1, 1991 and as further
amended and restated as of March 9, 2001, among the Seller,
Corporate Asset Funding Company, Inc., Citibank and CNAI, as
Agent, as the same may, from time to time, be amended,
modified, supplemented or restated."
(b) Section 5.01 of the Agreement is amended by eliminating
the period at the end thereof and adding the phrase ", except that each
reference in said Section 5.01(h) to an "Event of Investment
Ineligibility" shall be deemed to be a reference to an Event of
Termination."
(c) Section 6.01 of the Agreement is amended by adding the
phrase "after the occurrence of an Event of Termination" after the word
"time" in line 9 thereof.
(d) Section 6.02 through 6.05 are amended in their entity to
read as follows:
"Sections 6.02 through 6.05. Incorporation by
Reference. Each of Section 6.02 through 6.05 of the CAFCO
Agreement is hereby incorporated herein by this
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reference, except that (i) the reference in said Section
6.02(b) to the "Facility Termination Date" shall be deemed to
be a reference to the Commitment Termination Date and (ii) the
reference in said Section 6.03(a) to an "Event of Investment
Ineligibility" shall be deemed to be a reference to an Event
of Termination."
(e) Section 7.01(h) is amended by deleting the year "1990" in
line 3 thereof and replacing it with "1999".
(f) Section 10.01 is amended by striking the period at the end
of clause (xii) thereof, replacing it with "; or" and adding new clause
(xiii) thereto to read as follows:
"(xiii) any claim brought by any Swap Counterparty (as that
term is defined in the Indenture) arising out of or in
connection with the Intercreditor Agreement."
SECTION 3. Representations and Warranties of the Seller. The
Seller represents and warrants as follows:
(a) The Seller is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Michigan.
(b) The execution, delivery and performance by the Seller of
this Amendment and the Agreement, as amended hereby, and the
transactions contemplated hereby and thereby are within the Seller's
corporate powers, have been duly authorized by all necessary corporate
action, do not contravene (i) the Seller's charter or by-laws or (ii)
law or any contractual restriction binding on or affecting the Seller
and, except to the extent contemplated by the Agreement, do not result
in or require the creation of any lien, security interest or other
charge or encumbrance upon or with respect to any of its properties.
(c) No 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, delivery and performance by the
Seller of this Amendment or the Agreement, as amended hereby, except
for the filing from time to time of continuation statements continuing
the effectiveness of the UCC Financing Statements referred to in
Article III of the Agreement, which continuation statements have been
duly filed and are in full force and effect on the date hereof.
(d) This Amendment and the Agreement, as amended hereby,
constitute the legal, valid and binding obligations of the Seller
enforceable against the Seller in accordance with their respective
terms.
SECTION 4. Reference to and Effect on the Agreement; Consent
of the Agent. (a) On and after the date hereof, each reference in the Agreement
to "this Agreement", "hereunder",
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"hereof" or words of like import referring to the Agreement, shall mean and be a
reference to the Agreement as amended hereby.
(b) Except as specifically amended above, the Agreement is and
shall continue to be in full force and effect and is 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 the Seller, Citibank or the Agent under the
Agreement, nor constitute a waiver of any provision of the Agreement.
(d) In accordance with the provisions of Section 1.02 of the
Agreement, the Agent hereby consents to the terms of the CAFCO Agreement, as
amended and restated as of this date.
SECTION 5. Costs, Expenses and Taxes. The Seller agrees to pay
on demand all costs and expenses in connection with the preparation, execution,
delivery and administration of this Amendment and the other documents to be
delivered in connection therewith, including, without limitation, the reasonable
fees and reasonable out-of-pocket expenses of counsel for the Agent with respect
thereto and with respect to advising the Agent as to its rights and
responsibilities hereunder and thereunder, and all costs and expenses, if any
(including, without limitation, reasonable counsel fees and reasonable
expenses), in connection with the enforcement (whether through negotiations,
legal proceedings or otherwise) of this Amendment and the other documents to be
delivered in connection therewith. In addition, the Seller shall pay any and all
stamp and other taxes payable or determined to be payable in connection with the
execution and delivery of this Amendment and the other documents to be delivered
in connection therewith, and agrees to indemnify the Agent, the Owner, Citibank,
CNAI and their respective Affiliates against any and all liabilities with
respect to or resulting from any delay in paying or omission to pay such taxes.
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. Delivery of an executed counterpart of a signature
page to this Amendment by telecopier shall be effective as delivery of a
manually executed counterpart of this Amendment.
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.
THE DETROIT EDISON COMPANY
By: /s/ N.A. Khouri
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Title: N.A. Khouri
Vice President and
Treasurer
CITICORP NORTH AMERICA, INC.,
Individually and as Agent
By /s/ Joseph A. Farina
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Vice President
CITIBANK, N.A.
By /s/ Joseph A. Farina
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Vice President
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