AMENDMENT NO. 1
EXHIBIT
10 (a)
EXECUTION COPY
AMENDMENT NO. 1
This AMENDMENT NO. 1, dated as of December 19, 2007 (this “Amendment”), is by
and among CMS Energy Corporation, a Michigan corporation (the “Borrower”), the
financial institutions parties to the “Credit Agreement” (defined below) as lenders (the
“Lenders”), and Citicorp USA, Inc. (“CUSA”), as administrative agent (in such
capacity, the “Administrative Agent”).
WHEREAS, the Borrower, the Lenders, the Administrative Agent and CUSA, as collateral
agent, have entered into a Seventh Amended and Restated Credit Agreement, dated as of
April 2, 2007 (as amended, restated, supplemented or otherwise modified from time to
time, the “Credit Agreement”; capitalized terms not defined herein are used as
defined in the Credit Agreement);
WHEREAS, the Borrowers, the requisite number of Lenders under Section 11.01
of the Credit Agreement and the Administrative Agent have agreed, subject to the terms
and conditions hereof, to amend the Credit Agreement as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises set forth above, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the Borrowers, the requisite number of Lenders under Section 11.01 of the Credit
Agreement and the Administrative Agent agree as follows:
1. Amendment to Credit Agreement. Subject to the conditions set forth in
Paragraph 2 hereof, the Credit Agreement is hereby amended by amending and
restating the definition of “Consolidated EBITDA” set forth in Section
1.01 of the Credit Agreement in its entirety as follows:
“Consolidated EBITDA” means, with reference to any period, the
pretax operating income of the Borrower and its Subsidiaries (“Pretax
Operating Income”) for such period plus, to the extent included in
determining Pretax Operating Income (without duplication), (i)
depreciation, depletion and amortization, (ii) non-cash write-offs
and write-downs, including, without limitation, write-offs or
write-downs related to the sale of assets, impairment of assets and
loss on contracts, (ii) non-cash gains or losses on xxxx-to-market
valuation of contracts and (iv) the cash or non-cash costs and
expense charges related to the termination, buy-out or amendment of
electricity sales agreements associated with Dearborn Industrial
Generation, L.L.C. and/or CMS ERM Michigan LLC, or other agreements
related thereto in an aggregate amount not to exceed $325,000,000
during the life of the Agreement, in each case in accordance with
GAAP consistently applied, all calculated for the Borrower and its
Subsidiaries on a consolidated basis for such period; provided,
however, that Consolidated EBITDA shall not include any operating
income attributable to that portion of the revenues of Consumers
dedicated to the repayment of the Securitized Bonds.
2. Conditions to Effectiveness. The amendments contemplated by this Amendment
shall become effective upon the satisfaction of the following conditions:
(a) The Administrative Agent shall have received duly executed counterparts
hereof from each of the requisite number of Lenders under Section
11.01 of the Credit
Agreement, the Administrative Agent and the Borrower.
(b) As of the date hereof, all representations and warranties contained in
this
Amendment shall be true and correct in all material respects.
(c) As of the date hereof no event shall have occurred and be continuing
which constitutes an Event of Default or a Default.
3. Reference to and Effect on the Loan Documents. On and after the
effective
date of this Amendment, each reference in the Credit Agreement to “this Agreement”,
“hereunder”, “hereof” or words of like import referring to the Credit Agreement shall
mean and
be a reference to the Credit Agreement, as modified by this Amendment, and each
reference in
the other Loan Documents to “the Credit Agreement”, “thereunder”, “thereof” or words
of like
import referring to the Credit Agreement shall mean and be a reference to the Credit
Agreement,
as modified by this Amendment. Except as specifically set forth above, the Credit
Agreement
and all other Loan Documents are and shall continue to be in full force and effect
and are hereby
in all respects ratified and confirmed.
4. Miscellaneous.
(a) Representations and Warranties. The Borrower represents
and warrants
that:
(i) The representations and warranties contained in Section
7.01 of the Credit Agreement (other than those contained in
subsection (f) thereof) are correct in all material respects on and
as of the date hereof (unless such representation and warranty is made as
of a specific date, in which case such representation and warranty shall be
true and correct as of such date), and no event has occurred and is
continuing that constitutes a Default or an Event of Default;
(ii) Each Loan Party is duly organized and validly existing and in good
standing under the laws of the jurisdiction of its organization and has the
requisite power and authority to execute, deliver and carry out the terms
and provisions of this Amendment and has taken or caused to be taken all
necessary corporate or limited liability company action to authorize the
execution, delivery and performance of this Amendment;
(iii) No consent of any other person, including, without limitation,
shareholders or creditors of any Loan Party, and no action of, or filing
with, any governmental or public body or authority, is required to
authorize, or is otherwise required in connection with the execution,
delivery and performance of, this Amendment;
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(iv) This Amendment has been duly executed and delivered by a duly
authorized officer on behalf of the Loan Parties party thereto, and
constitutes the legal, valid and binding obligations of each Loan Party,
enforceable in accordance with its terms, except as enforcement thereof may
be subject to the effect of any applicable (A) bankruptcy, insolvency,
reorganization, moratorium or similar law affecting creditors’ rights
generally and (B) general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law); and
(v) The execution, delivery and performance of this Amendment will not
violate any law, statute or regulation applicable to any Loan Party or any
order or decree of any court or governmental instrumentality applicable to
it, or conflict with, or result in the breach of, or constitute a default
under, any of its contractual obligations.
(b)
No Waiver. Nothing herein contained shall constitute a waiver or be
deemed to be a waiver, of any existing Defaults or Events of Default, and the
Lenders
and the Administrative Agent reserve all rights and remedies granted to them
by the
Credit Agreement, by the other Loan Documents, by law and otherwise.
(c) Costs and Expenses. The Borrower agrees to pay all reasonable
costs and
out-of-pocket expenses (including, without limitation, reasonable
attorneys’ fees)
incurred by the Administrative Agent in connection with the preparation,
execution and
enforcement of this Amendment.
(d)
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.
(e) Counterparts. This Amendment may be executed in any number of
separate counterparts, each of which shall collectively and separately
constitute one
agreement. Delivery of an executed counterpart of a signature page to this
Amendment
by facsimile shall be effective as delivery of a manually executed counterpart
of this
Amendment.
(f) GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS
LAWS OF THE STATE OF NEW YORK, BUT OTHERWISE WITHOUT REGARD
TO CONFLICTS OF LAW PRINCIPLES).
[signature pages follow]
3
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.
CMS ENERGY CORPORATION, as Borrower |
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By: | /s/ Xxxxx X. Xxxxxxxxxxx | |||
Name: | Xxxxx X. Xxxxxxxxxxx | |||
Title: | Vice President & Treasurer | |||
CITICORP USA, INC., as Administrative Agent |
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By: | ||||
Name: | ||||
Title: | ||||
CITIBANK, N.A., as a Lender |
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By: | ||||
Name: | ||||
Title: | ||||
Signature Page to Amendment No. 1 to
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)
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.
CMS ENERGY CORPORATION, as Borrower |
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By: | ||||
Name: | ||||
Title: | ||||
CITICORP USA, INC., as Administrative Agent |
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By: | /s/ Xxxxxxx Xxxxxxx | |||
Name: | Xxxxxxx Xxxxxxx | |||
Title: | Vice President | |||
CITIBANK, N.A., as a Lender |
||||
By: | /s/ Xxxxxxx Xxxxxxx | |||
Name: | Xxxxxxx Xxxxxxx | |||
Title: | Vice President | |||
Signature Page to Amendment No. 1 to
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)
UNION BANK OF CALIFORNIA, N.A., as a Lender |
||||
By: | /s/ Xxxxx Read | |||
Name: | Xxxxx Read | |||
Title: | Vice President | |||
BARCLAYS BANK PLC, as a Lender |
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By: | ||||
Name: | ||||
Title: | ||||
JPMORGAN CHASE BANK, N.A., as a Lender |
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By: | ||||
Name: | ||||
Title: | ||||
WACHOVIA BANK, NATIONAL ASSOCIATION, as a Lender |
||||
By: | ||||
Name: | ||||
Title: | ||||
Signature Page to Amendment No. 1 to
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)
UNION BANK OF CALIFORNIA, N.A., as a Lender |
||||
By: | ||||
Name: | ||||
Title: | ||||
BARCLAYS BANK PLC, as a Lender |
||||
By: | /s/ Sydney X. Xxxxxx | |||
Name: | Sydney X. Xxxxxx | |||
Title: | Director | |||
JPMORGAN CHASE BANK, N.A., as a Lender |
||||
By: | ||||
Name: | ||||
Title: | ||||
Signature Page to Amendment No. 1 to
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)
UNION BANK OF CALIFORNIA, N.A., as a Lender |
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By: | ||||
Name: | ||||
Title: | ||||
BARCLAYS BANK PLC, as a Lender |
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By: | ||||
Name: | ||||
Title: | ||||
JPMORGAN CHASE BANK, N.A., as a Lender |
||||
By: | /s/ Xxxxxxx XxXxxxx | |||
Name: | Xxxxxxx XxXxxxx | |||
Title: | Executive Director | |||
WACHOVIA BANK, NATIONAL ASSOCIATION, as a Lender |
||||
By: | ||||
Name: | ||||
Title: | ||||
Signature Page to Amendment No. 1 to
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)
UNION BANK OF CALIFORNIA, N.A., as a Lender |
||||
By: | ||||
Name: | ||||
Title: | ||||
BARCLAYS BANK PLC, as a Lender |
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By: | ||||
Name: | ||||
Title: | ||||
JPMORDAN CHASE BANK, N.A., as a Lender |
||||
By: | ||||
Name: | ||||
Title: | ||||
WACHOVIA BANK, NATIONAL ASSOCIATION, as a Lender |
||||
By: | /s/ XXXXXXXX X. XXXXX | |||
Name: | XXXXXXXX X. XXXXX | |||
Title: | MANAGING DIRECTOR | |||
Signature Page to Amendment No. 1 to
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)
XXXXXXX XXXXX BANK USA, as a Lender |
||||
By: | /s/ Xxxxx Xxxxx | |||
Name: | Xxxxx Xxxxx | |||
Title: | Director | |||
BNP PARIBAS, as a Lender |
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By: | ||||
Name: | ||||
Title: | ||||
By: | ||||
Name: | ||||
Title: | ||||
SUNTRUST BANK, as a Lender |
||||
By: | ||||
Name: | ||||
Title: | ||||
UBS LOAN FINANCE LLC, as a Lender |
||||
By: | ||||
Name: | ||||
Title: | ||||
Signature Page to Amendment No. 1 to
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)
XXXXXXX XXXXX BANK USA, as a Lender |
||||
By: | ||||
Name: | ||||
Title: | ||||
BNP PARIBAS, as a Lender |
||||
By: | /s/ XXXXXXX X. XXXXXXX | |||
Name: | XXXXXXX X. XXXXXXX | |||
Title: | Managing Director | |||
By: | /s/ XXXXX X’XXXXX | |||
Name: | XXXXX X’XXXXX | |||
Title: | Managing Director | |||
SUNTRUST BANK, as a Lender |
||||
By: | ||||
Name: | ||||
Title: | ||||
UBS LOAN FINANCE LLC, as a Lender |
||||
By: | ||||
Name: | ||||
Title: | ||||
Signature Page to Amendment No. 1 to
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)
XXXXXXX XXXXX BANK USA, as a Lender |
||||
By: | ||||
Name: | ||||
Title: | ||||
BNP PARIBAS, as a Lender |
||||
By: | ||||
Name: | ||||
Title: | ||||
By: | ||||
Name: | ||||
Title: | ||||
SUNTRUST BANK, as a Lender |
||||
By: | /s/ Xxxx Xxxxx | |||
Name: | Xxxx Xxxxx | |||
Title: | Vice President | |||
UBS LOAN FINANCE LLC, as a Lender |
||||
By: | ||||
Name: | ||||
Title: | ||||
Signature Page to Amendment No. 1 to
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)
XXXXXXX XXXXX BANK USA, as a Lender |
||||
By: | ||||
Name: | ||||
Title: | ||||
BNP PARIBAS, as a Lender |
||||
By: | ||||
Name: | ||||
Title: | ||||
By: | ||||
Name: | ||||
Title: | ||||
SUNTRUST BANK, as a Lender |
||||
By: | ||||
Name: | ||||
Title: | ||||
UBS LOAN FINANCE LLC, as a Lender |
||||
By: | /s/ Xxxxx X. Xxxxx | |||
Name: | Xxxxx X. Xxxxx | |||
Title: | Associate Director | |||
By: | /s/ Xxxx X. Xxxx | |||
Name: | Xxxx X. Xxxx | |||
Title: | Associate Director | |||
Signature Page to Amendment No. 1 to
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)
DEUTSCHE BANK TRUST COMPANY AMERICAS, as a Lender |
||||
By: | /s/ Illegible | |||
Name: | ||||
Title: | ||||
By: | /s/ Xxxxxxx Xxxxxxx | |||
Name: | Xxxxxxx Xxxxxxx | |||
Title: | Director | |||
KEYBANK NATIONAL ASSOCIATION, as a Lender |
||||
By: | ||||
Name: | ||||
Title: | ||||
COMERICA BANK, as a Lender |
||||
By: | ||||
Name: | ||||
Title: | ||||
LASALLE BANK, NATIONAL ASSOCIATION, as a Lender |
||||
By: | ||||
Name: | ||||
Title: | ||||
Signature Page to Amendment No. 1 to
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)
DEUTSCHE BANK TRUST COMPANY AMERICAS, as a Lender |
||||
By: | ||||
Name: | ||||
Title: | ||||
By: | ||||
Name: | ||||
Title: | ||||
KEYBANK NATIONAL ASSOCIATION, as a Lender |
||||
By: | /s/ Xxxxxxx X. Xxxxxx | |||
Name: | Xxxxxxx X. Xxxxxx | |||
Title: | Senior Vice President | |||
COMERICA BANK, as a Lender |
||||
By: | ||||
Name: | ||||
Title: | ||||
LASALLE BANK, NATIONAL ASSOCIATION, as a Lender |
||||
By: | ||||
Name: | ||||
Title: | ||||
Signature Page to Amendment No. 1 to
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)
DEUTSCHE BANK TRUST COMPANY AMERICAS, as a Lender |
||||
By: | ||||
Name: | ||||
Title: | ||||
By: | ||||
Name: | ||||
Title: | ||||
KEYBANK NATIONAL ASSOCIATION, as a Lender |
||||
By: | ||||
Name: | ||||
Title: | ||||
COMERICA BANK, as a Lender |
||||
By: | /s/ XXXXX XXXXXX | |||
Name: | XXXXX XXXXXX | |||
Title: | VICE PRESIDENT | |||
LASALLE BANK, NATIONAL ASSOCIATION, as a Lender |
||||
By: | ||||
Name: | ||||
Title: | ||||
Signature Page to Amendment No. 1 to
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)
DEUTSCHE BANK TRUST COMPANY AMERICAS, as a Lender |
||||
By: | ||||
Name: | ||||
Title: | ||||
By: | ||||
Name: | ||||
Title: | ||||
KEYBANK NATIONAL ASSOCIATION, as a Lender |
||||
By: | ||||
Name: | ||||
Title: | ||||
COMERICA BANK, as a Lender |
||||
By: | ||||
Name: | ||||
Title: | ||||
LASALLE BANK MIDWEST, N.A., as a Lender |
||||
By: | /s/ XXXXXXX X. XXXXXX | |||
Name: | XXXXXXX X. XXXXXX | |||
Title: | FIRST VICE PRESIDENT | |||
Signature Page to Amendment No. 1 to
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)
CREDIT SUISSE, CAYMAN ISLANDS BRANCH, as a Lender |
||||
By: | /s/ Xxxxx Xxxxxxxx | |||
Name: | Xxxxx Xxxxxxxx | |||
Title: | Director | |||
By: | /s/ Xxxxxxxx Xxxxxxx | |||
Name: | Xxxxxxxx Xxxxxxx | |||
Title: | Associate | |||
FIFTH THIRD BANK, as a
Lender |
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By: | ||||
Name: | ||||
Title: | ||||
XXXXX FARGO BANK, NATIONAL ASSOCIATION, as
a Lender |
||||
By: | ||||
Name: | ||||
Title: | ||||
THE BANK OF NOVA SCOTIA, as a Lender |
||||
By: | ||||
Name: | ||||
Title: | ||||
BAYERISCHE LANDESBANK, as a Lender |
||||
By: | ||||
Name: | ||||
Title: | ||||
Signature Page to Amendment No. 1 to
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)
CREDIT SUISSE, CAYMAN ISLANDS BRANCH, as a Lender |
||||
By: | ||||
Name: | ||||
Title: | ||||
FIFTH THIRD BANK, as a Lender |
||||
By: | /s/ XXXXX XXXXXXXX | |||
Name: | XXXXX XXXXXXXX | |||
Title: | AVP | |||
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as a
Lender |
||||
By: | ||||
Name: | ||||
Title: | ||||
THE BANK OF NOVA SCOTIA, as a Lender |
||||
By: | ||||
Name: | ||||
Title: | ||||
BAYERISCHE LANDESBANK, as a Lender |
||||
By: | ||||
Name: | ||||
Title: | ||||
Signature Page to Amendment No. 1 to
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)
CREDIT SUISSE, CAYMAN ISLANDS BRANCH, as a Lender |
||||
By: | ||||
Name: | ||||
Title: | ||||
FIFTH THIRD BANK, as a Lender |
||||
By: | ||||
Name: | ||||
Title: | ||||
XXXXX FARGO BANK, NATIONAL ASSOCIATION, as a Lender | ||||
By: | ||||
Name: | ||||
Title: | ||||
THE BANK OF NOVA SCOTIA, as a Lender |
||||
By: | /s/ Xxxxx Xxxxxx | |||
Name: | Xxxxx Xxxxxx | |||
Title: | Managing Director | |||
BAYERISCHE LANDESBANK, as a Lender |
||||
By: | ||||
Name: | ||||
Title: | ||||
Signature Page to Amendment No. 1 to
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)
CREDIT SUISSE, CAYMAN ISLANDS
BRANCH, as a Lender |
||||
By: | ||||
Name: | ||||
Title: | ||||
FIFTH THIRD BANK, as a Lender |
||||
By: | ||||
Name: | ||||
Title: | ||||
XXXXX FARGO BANK, NATIONAL ASSOCIATION, as a Lender |
||||
By: | ||||
Name: | ||||
Title: | ||||
THE BANK OF NOVA SCOTIA, as a Lender |
||||
By: | ||||
Name: | ||||
Title: | ||||
BAYERISCHE LANDESBANK, as a Lender |
||||
By: | /s/ Xxxx Xxxxxxx /s/ Xxxxxxx xxx Xxxxxxx | |||
Name: | Xxxx Xxxxxxx Xxxxxxx xxx Xxxxxxx | |||
Title: | First Vice President Senior Vice President | |||
Signature Page to Amendment No. 1 to
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)
HUNTINGTON NAITONAL BANK, as a Lender |
||||
By: | /s/ Xxxxxxx Xxxxxxx | |||
Name: | Xxxxxxx Xxxxxxx | |||
Title: | Vice President | |||
XXXXXXX SACHS CREDIT PARTNERS, L.P., as a Lender |
||||
By: | ||||
Name: | ||||
Title: | ||||
SUMITOMO MITSUI BANKING CORP., as a Lender |
||||
By: | ||||
Name: | ||||
Title: | ||||
Signature Page to Amendment No. 1 to
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)
HUNTINGTON NAITONAL BANK, as a Lender |
||||
By: | ||||
Name: | ||||
Title: | ||||
XXXXXXX XXXXX CREDIT PARTNERS, L.P.,
as a Lender |
||||
By: | /s/ Xxxxx Xxxxxxx | |||
Name: | Xxxxx Xxxxxxx | |||
Title: | Authorized Signatory | |||
SUMITOMO MITSUI BANKING CORP., as a Lender |
||||
By: | ||||
Name: | ||||
Title: | ||||
Signature Page to Amendment No. 1 to
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)
SUMITOMO MITSUI BANKING CORP., as a Lender |
||||
By: | /s/ Xxxxxxxx Xxxxxxxx | |||
Name: | Xxxxxxxx Xxxxxxxx | |||
Title: | Joint General Manager | |||
Signature Page to Amendment No. 1 to
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)