AMENDMENT NO. 16 TO RECEIVABLES PURCHASE AGREEMENT
(10)(b)
Execution Copy
THIS AMENDMENT NO. 16 TO RECEIVABLES PURCHASE AGREEMENT (this “Amendment”) dated as of
April 29, 2009, is entered into among CONSUMERS RECEIVABLES FUNDING II, LLC (“Seller”),
CONSUMERS ENERGY COMPANY, in its capacity as Servicer (in such capacity, the “Servicer”),
FALCON ASSET SECURITIZATION COMPANY LLC (“Falcon”), and JPMORGAN CHASE BANK, N.A. (as
successor by merger to Bank One, NA (Main Office Chicago)) (“JPMorgan”), as a Financial
Institution and as Administrative Agent (in such capacity, the “Administrative Agent”).
Capitalized terms used herein without definition shall have the meanings ascribed thereto in the
“Purchase Agreement” referred to below.
PRELIMINARY STATEMENTS
A. Reference is made to that certain Receivables Purchase Agreement dated as of May 22, 2003
among Seller, Servicer, Falcon, JPMorgan and the Administrative Agent (as amended prior to the date
hereof and as the same may be further amended, restated, supplemented or modified from time to
time, the “Purchase Agreement”).
B. The parties hereto have agreed to amend certain provisions of the Purchase Agreement upon
the terms and conditions set forth herein.
SECTION 1. Amendment. Subject to the satisfaction of the conditions precedent set
forth in Section 3 hereof, the parties hereto hereby agree to amend the Purchase Agreement
as follows:
(a) Section 9.1(f) of the Purchase Agreement is amended to delete the
percentage “2.0%” in clause (ii) and replace it with “2.5%”.
(b) Exhibit I to the Purchase Agreement is hereby amended to delete the
definitions “Concentration Limit” and “Default Fee” and replace them with
the following:
“Concentration Limit” means, at any time, (i) for any
non-residential Obligor, 2% of the Outstanding Balance of all Eligible
Receivables and (ii) for any residential Obligor, $2,000, or such other amount
(a “Special Concentration Limit”) for any such Obligor designated by the
Administrative Agent; provided, that in the case of an Obligor and any
Affiliate of such Obligor, the Concentration Limit shall be calculated as if
such Obligor and such Affiliate are one Obligor; and provided,
further, that Conduit or the Required Financial Institutions may, upon
not less than three Business Days’ notice to Seller, cancel any Special
Concentration Limit.
“Default Fee” means with respect to any amount due and payable by
Seller (or required to be deposited by Servicer) in respect of any Aggregate
Unpaids, an amount equal to the greater of (i) $1000 and (ii) interest on any
such unpaid Aggregate Unpaids at a rate per annum equal to 2.00% above the
Alternate Base Rate.
(c) Exhibit I to the Purchase Agreement is hereby amended to delete the
percentage “6%” in clause (i) of the definition of “Dilution Percentage” and
replace it with “10%”.
(d) Exhibit I to the Purchase Agreement is hereby amended to delete clause
(i) of the definition of “Eligible Receivable” in its entirety and replace it
with the following:
(i) which is not a Charged-Off Receivable, a Delinquent Receivable, a WPP
Receivable or a Rate I Receivable,
(e) Exhibit I to the Purchase Agreement is hereby amended to delete the
definition “Liquidity Termination Date” and replace it with the following:
“Liquidity Termination Date” means February 12, 2010.
(f) Exhibit I to the Purchase Agreement is hereby amended to add the following
definition in the appropriate alphabetical order:
“Rate I Receivable” means a Receivable, the Obligor of which is a
non-residential customer, and which arises under a tariff available to any such
Obligor desiring interruptible electric service where the billing demand is
5,000 kW or more, issued under the authority of the Michigan Public Service
Commission dated December 22, 2005 in Case No. U-14347.
SECTION 2. Representations and Warranties. Each of the Seller and the Servicer hereby
represents and warrants to each of the other parties hereto, as to itself that:
(a) it has all necessary corporate or company power and authority to execute and
deliver this Amendment and to perform its obligations under the Purchase Agreement as
amended hereby, the execution and delivery of this Amendment and the performance of its
obligations under the Purchase Agreement as amended hereby has been duly authorized by all
necessary corporate or company action on its part and this Amendment constitutes its legal,
valid and binding obligation, enforceable against it in accordance with its terms; and
(b) on the date hereof, before and after giving effect to this Amendment, (i) other
than as waived pursuant to this Amendment, no Amortization Event or Potential Amortization
Event has occurred and is continuing and (ii) the aggregate Purchaser Interests do not
exceed the Applicable Maximum Purchaser Interest.
SECTION 3. Conditions Precedent. This Amendment shall become effective on the first
Business Day (the “Effective Date”) on which (i) the Administrative Agent or its counsel
has
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received four (4) counterpart signature pages to each of this Amendment and the Fee Letter of
even date herewith, in each case, executed by each of the parties hereto and (ii) the
Administrative Agent has received the Amendment Fee (as such term is defined in the Fee Letter).
SECTION 4. Reference to and Effect on the Transaction Documents.
(a) Upon the effectiveness of this Amendment, (i) each reference in the Purchase
Agreement to “this Receivables Purchase Agreement”, “this Agreement”, “hereunder”, “hereof”,
“herein” or words of like import shall mean and be a reference to the Purchase Agreement as
amended or otherwise modified hereby, and (ii) each reference to the Purchase Agreement in
any other Transaction Document or any other document, instrument or agreement executed
and/or delivered in connection therewith, shall mean and be a reference to the Purchase
Agreement as amended or otherwise modified hereby.
(b) Except as specifically amended, terminated or otherwise modified above, the terms
and conditions of the Purchase Agreement, of all other Transaction Documents and any other
documents, instruments and agreements executed and/or delivered in connection therewith,
shall remain in full force and effect and are hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall not operate as a
waiver of any right, power or remedy of the Administrative Agent or any Purchaser under the
Purchase Agreement or any other Transaction Document or any other document, instrument or
agreement executed in connection therewith, nor constitute a waiver of any provision
contained therein.
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 instrument. Delivery of an executed counterpart of a signature
page to this Amendment by facsimile or other electronic format shall be effective as delivery of a
manually executed counterpart of this Amendment.
SECTION 6. Governing Law. THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW OF NEW YORK, BUT OTHERWISE WITHOUT REGARD TO THE LAW OF CONFLICTS) OF THE STATE OF
NEW YORK, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
SECTION 7. Headings. Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment for any other
purpose.
SECTION 8. Fees and Expenses. Seller hereby confirms its agreement to pay on demand
all reasonable costs and expenses of the Administrative Agent or Purchasers in
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connection with the preparation, execution and delivery of this Amendment and any of the other
instruments, documents and agreements to be executed and/or delivered in connection herewith,
including, without limitation, the reasonable fees and out-of-pocket expenses of counsel to the
Administrative Agent or Purchasers with respect thereto.
[Remainder of Page Deliberately Left Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their
respective officers as of the date first above written.
| CONSUMERS RECEIVABLES FUNDING II, LLC |
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| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ | |||
| Title: | President, Chief Executive Officer, Chief Financial Officer and Treasurer | |||
| CONSUMERS ENERGY COMPANY, as Servicer |
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| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ | |||
| Title: | Vice President and Treasurer | |||
Signature Page to Amendment No. 16
| FALCON ASSET SECURITIZATION COMPANY LLC |
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| By: | JPMorgan Chase Bank, N.A., its attorney-in-fact | |||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | |||
| Title: | Vice President | |||
| JPMORGAN CHASE BANK, N.A., as a Financial Institution and Administrative Agent |
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| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | |||
| Title: | Vice President | |||
Signature Page to Amendment No. 16