Exhibit 10-43
AMENDMENT AND WAIVER AGREEMENT
AMENDMENT
AND WAIVER AGREEMENT dated as of May 8, 2008 among THE DETROIT
EDISON COMPANY, a Michigan corporation (the “ Seller
”), CAFCO, LLC, a Delaware limited liability company (“
CAFCO ”), CITIBANK, N.A., a national banking
association (“ Citibank ”) and CITICORP NORTH
AMERICA, INC., a Delaware corporation, individually (“
CNAI ”) and as agent (the “ Agent
”).
Preliminary Statements . (1) (A) The Seller, CAFCO,
Citibank and CNAI, individually and as Agent, are parties to a
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, as further amended (the “ RPA
”) and (B) the Seller, Citibank and CNAI, individually
and as Agent are parties to the Trade Receivables Purchase and Sale
Agreement, dated as of February 28, 1989, as amended and
restated as of October 1, 1991, as further amended (the
“ Citibank Agreement ”, together with the RPA,
the “ Agreements ”; capitalized terms not
otherwise defined herein shall have the meanings attributed to them
in the Agreements) pursuant to which CAFCO has purchased certain
Eligible Assets from the Seller;
(2) The
Seller, the Investor, Citibank and CNAI, individually and as Agent,
desire to, among other things, amend the Agreements to change the
margin set forth in the definition of Assignee Rate or Citibank
Rate, as the case may be, and to amend the fees set forth in the
letter agreements dated as of January 24, 2002 referred to in
Section 2.10(a) of each of the Agreements (the “ Fee
Letters ”).
(3) The
Seller, the Investor, Citibank and CNAI, individually and as Agent,
also desire to waive certain Events of Investment Ineligibility or
Events of Termination, as the case may be, which have or may have
occurred.
NOW,
THEREFORE, the parties agree as follows:
SECTION
1. Amendments to Agreements . Effective as of the date
hereof (unless otherwise set forth herein) and upon compliance with
the terms and conditions of Section 4 of this Amendment and
Waiver Agreement:
(a) Section 1.01
of each of the Agreements is amended as follows:
(i) as of July 1, 2008, the
definition of “Assignee Rate” in the RPA and of
“Citibank Rate” in the Citibank Agreement are amended
by deleting the percentage “1.25%” where it appears in
clause (y) thereof and replacing it with the percentage
“2.25%”.
(ii) New definitions are added which
read in their entirety as follows:
“ Accounting Based
Consolidation Event ” means the consolidation, for
financial and/or regulatory accounting purposes, of all or any
portion of the assets and liabilities of the Investor that are the
subject of this Agreement, the Asset Purchase Agreement or any
other Transaction Document with all or any portion of the assets
and liabilities of the Affected Person (other than the Investor) as
the result of the existence of, or occurrence of any change in,
accounting standards or the issuance of any pronouncement,
interpretation or release, including, without limitation, the
Financial Accounting Standards Board Interpretation No. 46, by
any accounting body or any other body charged with the promulgation
or administration of accounting standards, including, without
limitation, the Financial Accounting Standards Board, the
International Accounting Standards Board, the American Institute of
Certified Public Accountants, the Federal Reserve Board of
Governors and the Securities and Exchange Commission, and shall
occur as of the date that such consolidation (i) shall have
occurred with respect to the financial statements of the applicable
Affected Person or (ii) shall have been required to have
occurred, regardless of whether such financial statements were
prepared as of such date.
“ Asset Purchase
Agreement ” shall have the meaning assigned to that term
in Section 2.11(c).
“ Transaction Document
” shall have the meaning assigned to that term in
Section 2.11(c).
| |
(b) |
|
A new Section 2.11(c) is added to each of the Agreements
which reads in its entirety as follows: |
(c) If an Affected Person determines
that compliance with any applicable law or request from any central
bank or other authority charged with the interpretation or
administration thereof (whether or not having the force of law) or
the occurrence of any Accounting Based Consolidation Event after
May 8, 2008 (i) affects or would affect the amount of
capital required or reasonably expected to be maintained by such
Affected Person and that the amount of such capital is increased by
or based upon the existence of such Affected Person’s
commitment under this Agreement and all other instruments and
documents to be delivered hereunder (the “ Transaction
Documents ”) or any agreement pursuant to which liquidity
is provided to the Investor (an “ Asset Purchase
Agreement ”) or upon such Affected Person’s
purchasing or maintaining the ownership of Eligible Assets,
(ii) increases the cost of making or maintaining such
commitment under the Transaction Documents or any
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