exv10wxby






Exhibit 10(b)




Execution Copy




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.



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 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 or conveyance under the applicable
Sale Agreement or hereunder) or in which Seller, CRF I or Originator has a security interest or
other interest, including, without limitation, any indebtedness, obligation or interest
constituting an account, chattel paper, instrument or general intangible, arising in connection
with the sale of goods, electricity or gas or the rendering of services by Originator, and which is
identified on the books and records of the Originator or the Seller (including its accounting
system) with the account code “Account 1460000 Customer Receivables”, and further includes, without
limitation, the obligation to pay any Finance Charges with respect thereto. Indebtedness and other
rights and obligations arising from any one transaction, including, without limitation,
indebtedness and other rights and obligations represented by an individual invoice, shall
constitute a Receivable separate from a Receivable consisting of the indebtedness and other rights
and obligations arising from any other transaction; provided, that any indebtedness, rights or
obligations referred to in the immediately preceding sentence shall be a Receivable regardless of
whether the account debtor, Seller, CRF I or Originator treats such indebtedness, rights or
obligations as a separate payment obligation. Notwithstanding the foregoing, “Receivable” does not
include (i) Transferred Securitization Property or (ii) the books and records relating solely to
the Transferred. Securitization Property; provided that the



 









 






determination of what constitutes collections of the Securitization Charges in respect of
Transferred Securitization Property shall be made in accordance with the allocation methodology
specified in Annex 2 to the Servicing Agreement.




     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 the Administrative Agent or its counsel has received four (4)
counterpart signature pages to this Amendment executed by each of the parties hereto.



     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 AMENDMENT 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 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]




          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

 	 
	 	By:  	/s/ Laura L. Mountcastle
 	 
	 	 	Name:  	Laura L. Mountcastle 	 
	 	 	Title:  	President, Chief Executive Officer, Chief
Financial Officer and Treasurer 	 
	 



	 	 	 	 	 
	 	CONSUMERS ENERGY COMPANY, as Servicer

 	 
	 	By:  	/s/ Laura L. Mountcastle
 	 
	 	 	Name:  	Laura L. Mountcastle 	 
	 	 	Title:  	Vice President and Treasurer 	 



 









 






	 	 	 	 	 



Signature Page to Amendment No. 17




	 	 	 	 	 
	 	FALCON ASSET SECURITIZATION COMPANY LLC



JPMorgan Chase Bank, N.A., its attorney-in-fact

 	 
	 	By:  	/ / Patrick Menichillo
 	 
	 	 	Name:  	Patrick Menichillo 	 
	 	 	Title:  	Vice President 	 
	 



	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A., as a Financial

Institution and Administrative

 	 
	 	By:  	/s/ Patrick Menichillo
 	 
	 	 	Name:  	Patrick Menichillo 	 
	 	 	Title:  	Vice President 	 
	 



Signature Page to Amendment No. 17