Exhibit 10.42
AMENDMENT NO. 5
Dated as of January 19, 2006
This AMENDMENT among THE DETROIT EDISON COMPANY, a Michigan
corporation (the "Seller"), CAFCO, LLC (as successor to 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:
(a) 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, an Amendment
and Restatement thereof dated as of March 9, 2001, an Amendment dated as of
January 17, 2003, an Amendment dated as of May 28, 2003, an Amendment dated as
of February 25, 2004, and an Amendment dated as of February 18, 2005 (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).
(b) The Seller, the Investor, Citibank and the Agent have agreed to
amend the Agreement as hereinafter set forth.
SECTION 2. Amendments to Agreement. Effective as of the date hereof, the
definition of "Facility Termination Date" in Section 1.01 of the Agreement is
amended by replacing the date therein with the date "January 18, 2007."
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", "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.
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
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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.
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
CAFCO, LLC
By Citicorp North America, Inc.,
as Attorney-in-Fact
By: /s/ Joseph B. Keener
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Vice President
CITICORP NORTH AMERICA, INC.,
Individually and as Agent
By: /s/ Joseph B. Keener
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Vice President
By: /s/ Joseph B. Keener
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Vice President
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