EXHIBIT 99-39
AMENDMENT
DATED AS OF MAY 28, 2003
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) Effective agreement" set
forth in Section 1.01 of the Agreement is, as of the date hereof:
Section 2.11(a) of the Agreement is amended in its entirety to read
as follows:
"(a) If CNAI, the Owner, any entity which enters into a commitment
to purchase Eligible Assets or interests therein, or any of their
respective Affiliates (each an "Affected Person") determines that
(i) compliance with any law or regulation or any guideline or
request from any central bank or other governmental authority
(whether or not having the force of law) affects or would affect the
amount of the capital required or expected to be maintained by such
Affected Person and such Affected Person determines that the amount
of such capital is increased by or based upon the existence of any
commitment to make purchases of or otherwise to maintain the
investment in Pool Receivables or interests therein related to this
Agreement or to the funding thereof and other commitments of the
same type, or (ii) as a result of the existence of, or occurrence of
any change in, accounting standards (including the issuance of any
pronouncement, interpretation or release), all or any portion of the
assets and liabilities of the Investor, including the assets which
are the subject of this Agreement and the agreements related hereto,
are consolidated (for
financial and/or accounting purposes) with those of such Affected
Person (other than the Investor), then, upon demand by such Affected
Person (with a copy to the Agent), the Seller shall immediately pay
to the Agent, for the account of such Affected Person (as a
third-party beneficiary), from time to time as specified by such
Affected Person, additional amounts sufficient to compensate such
Affected Person in the light of such circumstances, in the case of
clause (i), to the extent that such Affected Person reasonably
determines such increase in capital to be allocable to the existence
of any of such commitments, and, in the case of clause (ii), to the
extent of any increased capital charge or reduced return resulting
from the consolidation of the assets and liabilities which are the
subject of this Agreement and the agreements related hereto, as
reasonably determined by such Affected Person; provided, however,
that with respect to Affected Persons other than Citibank, CNAI, the
Investor or their respective Affiliates, payment, in the case of
clause (i), will be provided only for increases in capital resulting
from changes in laws, regulations or guidelines from and after June
14, 1991. A certificate as to such amounts submitted to the Seller
and the Agent by such Affected Person shall be conclusive and
binding for all purposes, absent manifest error."
2.2 Section 11.07 of the Agreement is amended by adding a new
paragraph thereto which reads in its entirety as follows:
"Notwithstanding any other provision herein, each party hereto (and
each employee, representative or other agent of each party hereto)
may disclose to any and all Persons, without limitation of any kind,
the U.S. tax treatment and U.S. structure of the transaction
contemplated by this Agreement and the other agreements related
hereto and all materials of any kind (including opinions or other
tax analyses) that are provided to such party relating to such U.S.
tax treatment and U.S. tax structure, other than any information for
which nondisclosure is reasonably necessary in order to comply with
applicable securities laws."
SECTION 3. Representations and Warranties of the Seller. The Seller
represents and warrants as follows:
(1) The Seller is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Michigan.
(2) 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
2
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.
(3) 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.
(4) 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.
(1) 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.
(2) 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.
(3) In accordance with the provisions of Section 1.02 of the
Agreement, the Agent hereby consents to the amendment of Schedule II to the
CAFCO 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 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.
3
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.
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/Xxxxx X. Xxxxxx
-----------------------------------
Assistant Treasurer
CITICORP NORTH AMERICA, INC.,
Individually and as Agent
By: /s/Xxxxxx X. Xxxxxx
-----------------------------------
Vice President
CITIBANK, N.A.
By: /s/Xxxxxx X. Xxxxxx
-----------------------------------
Vice President
4
