EXHIBIT 99.16
AMENDMENT NO. 3
Dated as of February 25, 2004
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 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).
(b) The Seller, the Investor, Citibank and the Agent have agreed to
amend the Agreement as hereinafter set forth.
SECTION 1. Amendments to Agreement. Effective as of the date hereof:
1.1 The definition of "Facility 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, Citibank
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, Citibank and each of its members, 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 relating to or 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, the Investor, the Owner, 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 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 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/ David R. Murphy
----------------------------
Title: Assistant Treasurer
CAFCO, LLC
By Citicorp North America, Inc.,
as Attorney-in-Fact
By: /s/ Joseph A. Farina
-----------------------
Vice President
CITICORP NORTH AMERICA, INC.,
Individually and as Agent
By /s/ Joseph A. Farina
----------------------
Vice President
CITIBANK, N.A.
By /s/ Joseph A. Farina
----------------------
Vice President
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