EXHIBIT 99.15
AMENDMENT
Dated as of February 25,2004
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 and an Amendment dated as of May 28, 2003 (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
20, 2005."
1.2 Section 10.01 of the Agreement is amended by deleting the
introductory paragraph thereof and replacing it in its entirety as follows:
"Without limiting any other rights which the Agent, the Owner or CNAI
or any Affiliate thereof may have hereunder or under applicable law,
the Seller hereby agrees to indemnify each of the Agent, the Owner,
CNAI and each of their respective Affiliates, officers, directors,
employees, advisors, agents and representatives (each, an "Indemnified
Party")from and against any and all damages, losses, claims,
liabilities and related costs and expenses, including reasonable
attorneys' fees and disbursements (all of the foregoing being
collectively referred to as "Indemnified Amounts"), awarded against or
incurred by any of them arising out of or as a result of
this Agreement or the ownership of Eligible Assets or in respect of any
Receivable or any Contract, excluding, however, (i) Indemnified Amounts
to the extent resulting from gross negligence or willful misconduct on
the part of such Indemnified Party, (ii) recourse (except as otherwise
specifically provided in this Agreement) for uncollectible Receivables
or (iii) any income taxes incurred by any of them arising out of or as
a result of this Agreement or the ownership of Eligible Assets or in
respect of any Receivable or any Contract. Without limiting the
foregoing, the Seller shall pay on demand to each Indemnified Party any
and all amounts necessary to indemnify each Indemnified Party for
Indemnified Amounts resulting from:"
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.
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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.
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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/ Xxxxx X. Xxxxxx
----------------------------
Title: Assistant Treasurer
CITICORP NORTH AMERICA, INC.,
Individually and as Agent
By /s/ Xxxxxx X. Xxxxxx
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Vice President
CITIBANK, N.A.
By /s/ Xxxxxx X. Xxxxxx
-----------------------
Vice President
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