AMENDMENT NO. 17
TO
RECEIVABLES PURCHASE AGREEMENT
THIS AMENDMENT NO.
17 TO RECEIVABLES PURCHASE AGREEMENT (this “Amendment”)
dated as of September 3, 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 7.1(u)
of the Purchase Agreement is deleted and replaced with the
following:
(u) Certification
of Receivables Classification. In connection with the delivery of
each Monthly Report, the Servicer shall certify to the
Administrative Agent that it has made diligent inquiry and that the
accounts receivable included in the such report as Receivables are
identified on the books and records of the Originator and the
Seller with the account code “Account 1460000 Customer
Receivables”.
(b) Section 9.1(f)
of the Purchase Agreement is amended to delete clause
(iii) and replace it with the following:
(iii) the
average of the Past Due Ratios as of the end of such Accrual Period
and the two preceding Accrual Periods shall exceed (A) 13.0%
for any Accrual Period occurring in May through October of any
calendar year, (B) 11.0% for any Accrual Period occurring in
November of any calendar year or (C) 10.0% for any Accrual
Period occurring in December through April of any calendar
year
(c) Exhibit I
to the Purchase Agreement is hereby amended to delete the
definitions “Concentration Limit”, “Dilution
Ratio”, “Net Receivables Balance” and
“Receivable” and replace them with the
following:
“Concentration
Limit” means, at any time, for any Obligor, 2% of the
Outstanding Balance of all Eligible Receivables, or such other
amount (a “Special Concentration Limit”) for 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.
“Dilution
Ratio” means, for any Accrual Period, a percentage equal to
(i) the aggregate amount of Dilutions which occurred during
such Accrual Period divided by (ii) the aggregate Original
Balance of all Receivables generated by the Originator during such
Accrual Period.
“Net
Receivables Balance ” means, at any time, the aggregate
Outstanding Balance of all Eligible Receivables at such time, minus
the sum (without duplication) of (i) the greater of (a)
$8,000,000 and (b) the aggregate amount by which the
Outstanding Balance of all Eligible Receivables of each Obligor and
its Affiliates exceeds the Concentration Limit for such Obligor,
(ii) the Excess Unbilled Receivables Amount at such time,
(iii) the aggregate Outstanding Balance of Unapplied Cash and
Credits at such time, (iv) the Customer Deposits as such time,
(v) the Unbilled Receivables Offset Amount at such time,
(vi) the Excess Government Receivables Amount at such time and
(vii) the Excess Non-Energy Receivables Amount at such
time.
“Receivable”
means all indebtedness and other obligations owed to Seller, CRFI
or Originator (at the time it arises, and before giving effect to
any transfer o
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