AMENDMENT NO. 16
TO
RECEIVABLES PURCHASE AGREEMENT
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.
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
unde
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