EXHIBIT 10(c)
EXECUTION COPY
AMENDED AND RESTATED CASH COLLATERAL AGREEMENT
THIS AMENDED AND RESTATED CASH
COLLATERAL AGREEMENT, dated as of April 2, 2007 (this
“ Agreement ”)
, made by CMS ENERGY CORPORATION, a Michigan
corporation (the “ Pledgor
”), to CITICORP USA, INC. (“
CUSA ”), as administrative agent (in
such capacity, the Administrative Agent
”) for the lenders (the “
Lenders ”) parties to the Credit
Agreement (as hereinafter defined) and as collateral agent (in such
capacity, the “ Collateral Agent
”) for the Lenders.
PRELIMINARY STATEMENTS
(1) The
Administrative Agent, the Collateral Agent and the Lenders have
entered into that certain Seventh Amended and Restated Credit
Agreement, dated as of the date hereof (said Agreement, as it may
hereafter be amended or otherwise modified from time to time, being
the “ Credit Agreement ”,
the terms defined therein and not otherwise defined herein being
used herein as therein defined), with the Pledgor.
(2) The
Pledgor and the Administrative Agent have previously entered into
that certain Cash Collateral Agreement, dated as of August 3,
2005 (as amended, restated, supplemented or otherwise modified
prior to the date hereof, the “ Existing
Agreement ”) pursuant to which cash collateral
is deposited by the Administrative Agent in a special
non-interest-bearing cash collateral account (the “
Account ”) with the Collateral Agent at
its office at 388 Greenwich Street, New York, New York 10013,
Account No. 30579578 (or at such other office of the
Collateral Agent as the Collateral Agent may, from time to time,
notify the Pledgor and the Administrative Agent), in the name of
the Pledgor but under the sole control and dominion of the
Collateral Agent and subject to the terms of this Agreement and the
Credit Agreement.
(3) The
Pledgor and the Administrative Agent have agreed to amend and
restate the Existing Agreement pursuant to this Agreement.
NOW
THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Pledgor hereby agrees with the Collateral
Agent and the Administrative Agent, for their benefit and the
ratable benefit of the Lenders and the LC Issuer, as follows:
SECTION 1. Pledge and Assignment . The Pledgor
hereby pledges and assigns to the Collateral Agent, for its benefit
and the ratable benefit of the Administrative Agent, the Lenders
and the LC Issuer, and grants to the Collateral Agent, for its
benefit and the ratable benefit of the Administrative Agent, the
Lenders and the LC Issuer, a security interest in, the following
collateral (collectively, the “
Collateral ):
(i) the Account, all funds held
therein and all certificates and instruments, if any, from time to
time representing or evidencing the Account;
(ii) all Investments (as hereinafter
defined) from time to time, and all certificates and instruments,
if any, from time to time representing or evidencing the
Investments;
(iii) all notes, certificates of
deposit, deposit accounts, checks and other instruments from time
to time hereafter delivered to or otherwise possessed by the
Collateral Agent for or on behalf of the Pledgor in substitution
for or in addition to any or all of the then existing
Collateral;
(iv) all interest, dividends, cash,
instruments and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange
for any or all of the then existing Collateral; and
(v) all proceeds of any and all of
the foregoing Collateral.
SECTION 2. Security for Obligations . This Agreement
secures the payment of all reimbursement obligations of the Pledgor
now or hereafter existing with respect to LC Outstandings and all
obligations of the Pledgor now or hereafter existing under this
Agreement (all such obligations of the Pledgor being the “
Secured Obligations ”). Without limiting the
generality of the foregoing, this Agreement secures the payment of
all amounts which constitute part of the Secured Obligations and
which remain outstanding after the Commitment Termination Date or
otherwise would be owed by the Pledgor to the Administrative Agent,
the Collateral Agent or the Lenders under the Credit Agreement and
the Promissory Notes (if any) but for the fact that they are
unenforceable or not allowable due to the existence of a
bankruptcy, reorganization or similar proceeding involving the
Pledgor.
SECTION 3. Delivery of Collateral . All certificates
or instruments, if any, representing or evidencing the Collateral
shall be delivered to and held by or on behalf of the Collateral
Agent pursuant hereto and shall be in suitable form for transfer by
delivery, or shall be accompanied by duly executed instruments of
transfer or assignment in blank, all in form and substance
satisfactory to the Collateral Agent. The Collateral Agent shall
have the right, at any time upon the occurrence and during the
continuance of an Event of Default, in its discretion and without
notice to the Pledgor, to transfer to or to register in the name of
the Collateral Agent or any of its nominees any or all of the
Collateral. In addition, the Collateral Agent shall have the right
at any time to exchange certificates or instruments representing or
evidencing Collateral for certificates or instruments of smaller or
larger denominations.
SECTION 4. Maintaining the Account . So long as any
LC Obligation shall remain unpaid, any Letter of Credit shall
remain outstanding or any Lender shall have any Commitment:
(a) The Pledgor will maintain the
Account with the Collateral Agent.
(b) It shall be a term and condition
of the Account, notwithstanding any term or condition to the
contrary in any other agreement relating to the Account and except
as otherwise provided by the provisions of Sections 6, 13 and
17, that no amount (including interest on the Account, if any)
shall be paid or released to or for the account of, or
2
withdrawn by or
for the account of, the Pledgor or any other Person (other than the
Administrative Agent or the Collateral Agent) from the
Account.
The
Account shall be subject to such applicable laws, and such
applicable regulations of the Board of Governors of the Federal
Reserve System and of any other appropriate banking or governmental
authority, as may now or hereafter be in effect.
SECTION 5. Investing of Amounts in the Account . If
requested by the Pledgor, the Collateral Agent will, subject to the
provisions of Section 6 and Section 13, from time to time
(a) invest amounts on deposit in the Account in such Permitted
Investments as the Pledgor may select and the Administrative Agent
may approve and (b) invest interest paid on the Permitted
Investments referred to in clause (a) above, and reinvest
other proceeds of any such Permitted Investments which may mature
or be sold, in each case in such Permitted Investments as the
Pledgor may select and the Administrative Agent may approve (the
Permitted Investments referred to in clauses (a) and (b)
above, being collectively “ Investments
”). Interest and proceeds that are not invested or reinvested
in Investments as provided above shall be deposited and held in the
Account.
SECTION 6. Release of Amounts . So long as no Event
of Default or Default shall have occurred and be continuing, the
Collateral Agent will pay and release to the Pledgor or at its
order, upon the request of the Pledgor, (a) amounts of credit
balance of the Account and of principal of any other Collateral
when matured or sold to the extent that (i) the sum of the
credit balance of the Account plus the aggregate outstanding
principal amount of all other Collateral exceeds (ii) the
aggregate Dollar Equivalent of the LC Outstandings in respect of
all Letters of Credit and all other amounts owing by the Pledgor
hereunder, (b) all amounts in the Account if (i) the
aggregate of all of the Commitments shall exceed the Total
Outstandings, (ii) the aggregate Dollar Equivalent of the LC
Outstandings in respect of all Letters of Credit denominated in
euro and all other amounts owing by the Pledgor hereunder are less
than $40,000,000, (iii) the aggregate Dollar Equivalent of the
LC Outstandings in respect of all Letter
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