EXHIBIT 99-62
AMENDMENT
Dated as of January 20, 2005
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, an Amendment dated as of May 28, 2003 and an
Amendment dated as of February 25, 2004 (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 1. Amendments to Agreement. (a) Effective as of the date hereof:
1.1 The definition of "Commitment Termination Date" in Section 1.01 of the
Agreement is amended by replacing the date therein with the date "January 19,
2006."
1.2 Section 9.01 of the Agreement is amended by adding a new subsection
(c) thereto which reads in its entirety as follows:
"Notwithstanding any other provision of this Section 9.01, the Owner may at
any time pledge or grant a security interest in all or any portion of its rights
(including, without limitation, rights to payment of Capital and Yield) under
this Agreement or under any asset purchase agreement to secure obligations of
the Owner to a Federal Reserve Bank, without notice to or consent of the Seller
or the Agent; provided that no such pledge or grant of a security interest shall
release the Owner from any of its obligations hereunder or under any asset
purchase agreement, as the case may be, or substitute any such pledgee or
grantee for the Owner as a party hereto or to any asset purchase agreement, as
the case may be."
SECTION 2. 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 3. 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", "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.
SECTION 4. 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 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.
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 6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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:
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Title:
CITICORP NORTH AMERICA, INC.,
Individually and as Agent
By
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CITIBANK, N.A.
By
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