EXHIBIT 10.41
AMENDMENT NO. 1
Dated as of January 17, 2003
This AMENDMENT among THE DETROIT EDISON COMPANY, a Michigan corporation
(the "Seller"), CORPORATE ASSET FUNDING COMPANY, INC. (the "Investor"),
CITIBANK, N.A. ("Citibank"), and CITICORP NORTH AMERICA, INC., individually and
as agent (the "Agent") for itself, the Owner and Citibank.
PRELIMINARY STATEMENTS:
(1) The Seller, the Investor, Citibank and the Agent have entered into a
Trade Receivables Purchase and Sale Agreement, dated as of February 28, 1989, an
Amendment and Restatement thereof, dated as of October 1, 1991, and an Amendment
and Restatement thereof dated as of March 9, 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, the Investor, Citibank and the Agent have agreed to amend
the Agreement as hereinafter set forth.
SECTION 2. Amendment to Agreement. Effective as of the date hereof, clause
(y) of the definition of "Assignee Rate" is amended by deleting therefrom the
percentage "0.875%" and replacing it with the percentage "1.25%."
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 law 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 change 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 datehereof, 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, the Investor, the Owner, 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
Citibank Agreement, the Agent (as the Agent under the Citibank Agreement)
hereby consents to the amendment to the definition of "Assignee Rate" set
forth herein.
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 Investor, 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.
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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/David R. Murphy
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Title: Assistant Treasurer
CORPORATE ASSET FUNDING COMPANY, INC.
By Citicorp North America, Inc.,
as Attorney-in-Fact
By: /s/ Joseph A. Farina
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Vice President
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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