as Financial Institutions,
as Administrative Agent
RECEIVABLES PURCHASE AGREEMENT
PURCHASE ARRANGEMENTS
2
PAYMENTS AND COLLECTIONS
3
4
5
6
COMPANY FUNDING
FINANCIAL INSTITUTION FUNDING
7
8
REPRESENTATIONS AND WARRANTIES
9
10
11
12
CONDITIONS OF PURCHASES
13
14
COVENANTS
15
16
17
18
19
20
21
22
23
24
ADMINISTRATION AND COLLECTION
25
26
27
AMORTIZATION EVENTS
28
29
30
INDEMNIFICATION
31
32
33
34
THE AGENT
35
36
37
ASSIGNMENTS; PARTICIPATIONS
38
39
MISCELLANEOUS
40
41
42
43
44
45
46
CONSUMERS RECEIVABLES FUNDING II, LLC | ||||||
By: | /s/ Laura L. Mountcastle | |||||
Name: | Laura L. Mountcastle | |||||
Title: | President | |||||
Address: | Consumers Receivables Funding II, LLC One Energy Plaza Jackson, Michigan 49201 FAX: (517) 788-8233 | |||||
CONSUMERS ENERGY COMPANY, as Servicer | ||||||
By: | /s/ Laura L. Mountcastle | |||||
Name: | ||||||
Title: | Vice President | |||||
Address: | Consumers Energy Company One Energy Plaza Jackson, Michigan 49201 FAX: (517) 788-8233 |
FALCON ASSET SECURITIZATION CORPORATION | ||||||
By: | /s/ Leo V. Loughead | |||||
Address: | c/o Bank One, NA (Main Office Chicago), | |||||
as Administrative Agent | ||||||
Asset Backed Finance | ||||||
Suite IL1-1729, 1-19 | ||||||
1 Bank One Plaza | ||||||
Chicago, Illinois 60670-1729 | ||||||
FAX: | (312) 732-1844 |
BANK ONE, NA (MAIN OFFICE CHICAGO), as a Financial | ||||||
Financial Institution and as Administrative Agent | ||||||
By: | /s/ Leo V. Loughead | |||||
Name: | ||||||
Title: | Managing Director, Capital Markets | |||||
Address: | Bank One, NA (Main Office Chicago) | |||||
Asset Backed Finance | ||||||
Suite IL1-1729, 1-19 | ||||||
1 Bank One Plaza | ||||||
Chicago, Illinois 60670-1729 | ||||||
Fax: | (312) 732-3600 |
Exh I - 1
Monthly Report Coverage Period | Applicable Maximum Purchaser Interest | |
January | 95% | |
February | 92.5% | |
March | 85% | |
April | 85% | |
May | 100% | |
June | 100% | |
July | 100% | |
August | 95% | |
September | 95% | |
October | 100% | |
November | 100% | |
December | 100% |
Exh I - 2
Debt Rating by S&P/Moody’s | Applicable Stress Factor | |
Greater than or equal to BBB-/Baa3 | 2.0 | |
Less than BBB-/Baa3, but greater than or equal to BB/Ba2 | 2.25 | |
Less than BB/Ba2 or unrated | 2.5 |
Exh I - 3
Exh I - 4
Exh I - 5
Exh I - 6
DP | = | the Dilution Percentage; | ||||
ADR | = | the average of the monthly Dilution Ratios occurring during the 12 most recent Accrual Periods; | ||||
ASF | = | Applicable Stress Factor; | ||||
HDR | = | the highest Dilution Ratio occurring during the 12 most recent Accrual Periods; and | ||||
DHF | = | the Dilution Horizon Factor at such time. |
Exh I - 7
Exh I - 8
Exh I - 9
Exh I - 10
Exh I - 11
Exh I - 12
ASF | = | Applicable Stress Factor; | ||||
LP | = | the Loss Percentage; | ||||
LHF | = | the Loss Horizon Factor; and | ||||
LR | = | the highest three month rolling average of the Loss Ratios occurring during the 12 most recent Accrual Periods. |
Exh I - 13
Exh I - 14
Exh I - 15
C | ||||
NRB—AR |
where: | ||||||
C | = | the Capital of such Purchaser Interest. | ||||
AR | = | the Aggregate Reserves. | ||||
NRB | = | the Net Receivables Balance. |
Exh I - 16
Exh I - 17
Aggregate Reduction | Required Notice Period | |
<$50,000,000 | one Business Days | |
$50,000,000 to $99,999,999.99 | two Business Days | |
$100,000,000 to $250,000,000 | five Business Days | |
>$250,000,000 | ten Business Days |
Exh I - 18
Exh I - 19
Exh I - 20
Exh I - 21
Suite IL1-1729,1-19
1 Bank One Plaza
Chicago, Illinois 60670-1729
Purchase Price: | $ | |||
Date of Purchase: | ||||
Requested Discount Rate: | [LIBO Rate] [Prime Rate] [CP rate] | |||
Tranche Period: |
Michigan ABM 072000326 Reference:
Telephone advice to: [Name] @ tel. No. ()
By: | ||||
Name: | ||||
Title: |
IDENTIFICATION NUMBER(S); STATE ORGANIZATION IDENTIFICATION NUMBER(S)
Chief Executive Office, and
Location of Records :
Jackson, MI 49201 (Prior to May 2003 Board Meeting) One Energy Plaza
Jackson, MI 49201-2276 (From and after May 2003 Board Meeting)
Federal Employer Identification Number: 38-0442310
Michigan Organizational Identification Number: MI 021-395
270 Park Avenue
New York, NY 10017
Contact: Dorin Ladan
227 West Monroe Street
Chicago, IL 60606
Phone: 312-541-0583
Specified Account: #000323010091
611 Woodward Ave. Detroit, MI 48226 Contact: Shirley Ferretti
Phone:313-225-1357 Specified Account: #1013233 Collection Account:
#1242263
201 South Main Street, Ann Arbor, MI 48104
Contact: Judy Gross
Phone: 734-747-8050
Specified Account: #4825285820
Collection Accounts: #1054516142, #1054516150, #1054518354 (Concentration Account)
250 Monroe Avenue NW, Suite 400
Grand Rapids, MI 49503
Contact: Debra Olin Phone: 616-653-8169
Collection Accounts: #7161331629, #7161331686, #9991602906
Concentration Account)
599 Woodward Ave.,
9th Floor, MC3268
Detroit, MI 48226
Contact: Stacy McVeigh Phone:313-222-4515
Collection Accounts: #1076119864. #1076124450. #1076124468, #1850844026, #1851120384,
#1850923754,#1851041283,#1076124476,#1850497742. #1076119914, #1851183945,
#1000123354 (Concentration Account)
1121 E. State Street Cheboygan, MI 49721 Phone: 231-597-9687
Collection Account: #00812005
Phone: 989-366-9636 Collection Account: #1236488
Phone: 269-945-2401 Collection Account: #01001818
Phone: 989-685-2461 Collection Account: #19202574
Contact: Janet Moore Phone: 248-901-4856
Collection Account: #884264203, #884264238, #884264211,
#884264246 (Concentration Account)
611 Woodward Avenue
Detroit, Michigan 48226
(a) | Notice of the establishment of a concentration account into which all moneys collected in the Collection Account shall thereafter be transferred. Such transfers will be in accordance with your availability of funds procedures applicable to the Seller and will encompass all collected deposits less any deductions for returned items. Transfers between the Collection Account and the concentration account may be carried out using either Fed wire transfers or ACH (Automated Clearing House) entries. | ||
(b) | A requirement that duplicate monthly bank statements for the Collection Account and the concentration account be mailed directly to an address specified by the Administrative Agent for an additional fee consistent with its customary fees for duplicate monthly bank statements. |
Very truly yours, CONSUMERS RECEIVABLES FUNDING, LLC | ||||
By: | ||||
Title: | ||||
Address: | ||||
CONSUMERS RECEIVABLES FUNDING II, LLC | ||||
By: | ||||
Title: | ||||
Address: | ||||
CONSUMERS ENERGY COMPANY | ||||
By: | ||||
Title: | ||||
Address: | ||||
By: | ||||
Title: Managing Director, Capital Markets | ||||
Asset Backed Finance
Suite IL1-1729, 1-19
1 Bank One Plaza
Chicago, Illinois 60670-1729
By: | ||||
Title: | ||||
Address: | ||||
611 Woodward Avenue
Detroit, Michigan 48226
as Administrative Agent
By: | ||||
Title: | ||||
Address: | ||||
Asset Backed Finance
Suite IL1-1729, 1-19
1 Bank One Plaza
Chicago, Illinois 60670-1729
[ASSIGNOR] | ||||
By: | ||||
Title: | ||||
[ASSIGNEE] | ||||
By: | ||||
Title: | ||||
FOR NOTICES AND COMMITMENT AMOUNTS
A-l | A-2 | B-l | B-2 | |||||||||||||||
Commitment (prior | Commitment (after | |||||||||||||||||
to giving effect to | giving effect to | |||||||||||||||||
the Assignment | the Assignment | Outstanding Capital | Ratable Share of | |||||||||||||||
Assignor | Agreement) | Agreement) | (if any) | Outstanding Capital |
A-2 | B-l | B-2 | ||||||
Commitment (after | ||||||||
giving effect to | ||||||||
the Assignment | Outstanding Capital | Ratable Share of | ||||||
Assignee | Agreement) | (if any) | Outstanding Capital |
Phone:
Fax:
Please see attached.
Consumers Receivables FundingX&LLC Monthly Report | ||
Consumers Energy Company Ratings (The senior secured long-term debt securities rating without third party credit | Moody’s Prime Rate | |
Monthly Report for the Month ending |
Suite IL1-1729,1-19
1 Bank One Plaza
Chicago, Illinois 60670-1729
Aggregate Reduction: | $ | r 1 | ||
Proposed Reduction Date: | [ 1 |
60670 ABA# 071000013
Reference: Consumers Receivables Funding II, LLC
Very truly yours. CONSUMERS RECEIVABLES FUNDING II LLC | ||||
By: | ||||
Name: | ||||
Title: |
[Address of Post Office]
Consumers Energy COMPANY | ||||
By: | ||||
Name: | ||||
Title | ||||
Contact Number
BANK ONE, NA (MAIN OFFICE CHICAGO)
By: | ||||
Name: | ||||
Title: | ||||
Financial Institution | Commitment | |||
Bank One, NA (Main Office Chicago) | $ | 325,000,000 |
Exhibit I | Definitions | |
Exhibit II | Form of Purchase Notice | |
Exhibit III | Places of Business of the Seller Parties; Locations of Records; Organizational and Federal Employer Identification Number(s) | |
Exhibit IV | Names of Collection Banks; Collection Accounts; Lock-Boxes; Specified Accounts | |
Exhibit V | Form of Compliance Certificate | |
Exhibit VI | Form of Collection Account Agreement | |
Exhibit VII | Form of Assignment Agreement | |
Exhibit VIII | Credit and Collection Policy | |
Exhibit IX | Form of Monthly Report | |
Exhibit X | Form of Reduction Notice | |
Exhibit XI | Form of P.O. Box Transfer Notice |
Schedule B Closing Documents
Schedule C Financial Covenant Definitions
Exhibit I | Definitions | |
Exhibit II | Principal Place of Business; Location(s) of Records; Organizational and Federal Employer Identification Numbers; Other Names | |
Exhibit III | Lock-Boxes; Collection Accounts; Collection Banks; Specified Accounts | |
Exhibit IV | Form of Compliance Certificate | |
Exhibit V | Credit and Collection Policy | |
Exhibit VI | Form of Subordinated Note | |
Exhibit VII | Form of UCC-3 |
Debtor | Search | Jurisdiction | ||
Consumers Energy Company | UCC-1 | Secretary of State, Michigan | ||
UCC-1 Name Variation | Secretary of State, Michigan | |||
Consumers Receivables Funding, LLC | UCC-1 | Secretary of State. Delaware Secretary of State, Michigan | ||
UCC-1 Name Variation | ||||
Consumers Receivables Funding II, LLC | UCC-1 | Secretary of State, Delaware |
Debtor | Search | Jurisdiction | ||
Consumers Energy Company | State and Federal Tax Liens | Secretary of State, Michigan Register of Deeds, Jackson County, Michigan | ||
Pending Suits and Judgements | None | |||
Consumers Receivables Funding, LLC | State and Federal Tax Liens | Secretary of State, Delaware Recorder, New Castle County, Delaware Secretary of State, Michigan Register of Deeds, Jackson County, Michigan |
Debtor | Search | Jurisdiction | ||
Pending Suits and Judgements | Superior Court, New Castle County, Delaware Federal Court in DE Circuit Court, Jackson County, Michigan Federal Court in MI | |||
Consumers Receivables Funding II, LLC | State and Federal Tax Liens | Secretary of State, Delaware Recorder, New Castle County, Delaware | ||
Pending Suits and Judgements | Superior Court, New Castle County, Delaware Federal Court in DE |
Company | Bank | Account Number | ||
Consumers Energy | 000323010091 j | |||
Company | JPMorgan Chase Bank | j | ||
Consumers Receivables Funding, LLC | Bank One. NA | 1013233 | ||
Consumers | Standard Federal Bank, N.A. | j | ||
Receivables | 4825285820 | | |||
Funding, LLC |
Debtor | Secured Party | Filing Office | Filing Number | Date Filed | ||||||
Consumers Energy Company | Bank One, NA | Secretary of State of Michigan | 46796C | October 18,2002 | ||||||
Consumers Energy Company | Canadian Imperial Bank of Commerce | Secretary of State of Michigan | 85388B | June 11, 1997 | ||||||
Consumers Energy Company | Canadian Imperial Bank of Commerce | Secretary of State of Michigan | 35661C | April 1,2002 | ||||||
Consumers Power Company | Canadian Imperial Bank of Commerce | Secretary of State of Michigan | 81020B | December 17, 1996 | ||||||
Consumers Receivables Funding, LLC | Canadian Imperial Bank of Commerce | Secretary of State of Delaware | 20816847 | April 1,2002 |
Debtor | Secured Party | Filing Office | Filing Number | Date Filed | ||||
Consumers Power Company | JPMorgan Chase Bank (formerly known as Chemical Bank), as Trustee | Secretary of State of Michigan | | 33039B | 07/08/93 | ||||
Consumers Power Company | JPMorgan Chase Bank (formerly known as Chemical Bank), as Trustee | Secretary of State of Michigan | C768455 | 10/15/93 | ||||
Consumers j Energy ! Company* | (f/k/a Consumers Power Company) | JPMorgan Chase Bank (formerly known as The Chase Manhattan Bank), as Trustee | Secretary of State of Michigan | D338697 | 02/13/98 | ||||
Consumers Energy Company* | (f/k/a* j Consumers Power Company) | JPMorgan Chase Bank (formerly known as The Chase Manhattan Bank), as Trustee | Secretary of State of Michigan | D348656 | 03/11/98 | ||||
Consumers Energy Company* (flk/a* Consumers Power Company) | JPMorgan Chase Bank (formerly known as The Chase Manhattan Bank), as Trustee | Secretary of State of Michigan | D381767 | 06/02/98 | ||||
Consumers Energy Company* (flk/a* Consumers Power Company) | JPMorgan Chase Bank (formerly known as The Chase Manhattan Bank), as Trustee | Secretary of State of Michigan | D401226 | 07/21/98 | ||||
Consumers Energy Company | JPMorgan Chase Bank (formerly known as The Chase Manhattan Bank), as Trustee | Secretary of State of Michigan | D453623 | 12/10/98 | ||||
Consumers Energy Company | JPMorgan Chase Bank (formerly known as The Chase Manhattan Bank), as Trustee | Secretary of State of Michigan | D620613 | 02/16/00 | ||||
Consumers Energy Company | JPMorgan Chase Bank (formerly known as The Chase Manhattan Bank), as Trustee | Secretary of State of Michigan | D621014 | 02/17/00 | ||||
Consumers Energy Company (f/k/a Consumers Power Company) | JPMorgan Chase Bank, as Trustee | Secretary of State of Michigan | D959574 | 09/26/02 | ||||
Consumers Energy Company (f/k/a Consumers Power Company) | JPMorgan Chase Bank, as Trustee | Secretary of State of Michigan | D959576 | 09/26/02 | ||||
Consumers Energy Company (formerly known as Consumers Power Company) | JPMorgan Chase Bank (formerly known as The Chase Manhattan Bank), as Trustee | Secretary of State of Michigan | D961115 | 10/01/02 |
Debtor | Secured Party | Filing Office | Filing Number | Date Filed | ||||
Consumers Energy J Company | (formerly | known as Consumers j Power Company) | JPMorgan Chase Bank (formerly known as The Chase Manhattan Bank), as Trustee | Secretary of State of Michigan | 2003061505-1 | 04/01/03 | ||||
Consumers Energy j Company (formerly ! known as j Consumers | Power Company) | JPMorgan Chase Bank (formerly known as The Chase Manhattan Bank), as Trustee | Secretary of State of Michigan | (1) 2003063719-6 | 04/03/03 | ||||
Consumers Energy Company (formerly known as | Consumers | Power ! Company) | JPMorgan Chase Bank (formerly known as The Chase Manhattan Bank), as Trustee | i Secretary of State of Michigan j 1 | 2003064904-0 | 04/04/03 | ||||
Consumers Energy Company (formerly known as Consumers Power Company) | JPMorgan Chase Bank (formerly known as The Chase Manhattan Bank) | i Secretary of State j of Delaware i | 2003087797-8 | 1 05/07/03 i |
Sch. C-1
Sch. C-2
Sch. C-3
Sch. C-4
Sch. C-5
(continued)
Page | ||||
ARTICLE I | ||||
PURCHASE ARRANGEMENTS | 1 | |||
Section 1.1 Purchase Facility | 1 | |||
Section 1.2 Increases | 2 | |||
Section 1.3 Decreases | 2 | |||
Section 1.4 Payment Requirements | 2 | |||
ARTICLE II | ||||
PAYMENTS AND COLLECTIONS | 3 | |||
Section 2.1 Payments | 3 | |||
Section 2.2 Collections Prior to Amortization | 3 | |||
Section 2.3 Terminating Financial Institutions | 5 | |||
Section 2.4 Collections Following Amortization | 5 | |||
Section 2.5 Application of Collections | 5 | |||
Section 2.6 Payment Rescission | 6 | |||
Section 2.7 Maximum Purchaser Interests | 6 | |||
Section 2.8 Clean Up Call | 6 | |||
Section 2.9 Payment Allocations | 6 | |||
ARTICLE III | ||||
COMPANY FUNDING | 7 | |||
Section 3.1 Yield | 7 | |||
Section 3.2 Payments | 7 | |||
Section 3.3 Calculation of Yield | 7 | |||
ARTICLE IV | ||||
FINANCIAL INSTITUTION FUNDING | 7 | |||
Section 4.1 Financial Institution Funding | 7 | |||
Section 4.2 Yield Payments | 7 | |||
Section 4.3 Selection and Continuation of Tranche Periods | 7 | |||
Section 4.4 Financial Institution Bank Rates | 8 | |||
Section 4.5 Suspension of the LIBO Rate | 8 | |||
Section 4.6 Liquidity Agreement Fundings | 9 | |||
ARTICLE V | ||||
REPRESENTATIONS AND WARRANTIES | 9 | |||
Section 5.1 Representations and Warranties of The Seller Parties | 9 |
Page vi
Page | ||||
Section 5.2 Financial Institution Representations and Warranties | 13 | |||
ARTICLE VI | ||||
CONDITIONS OF PURCHASES | 13 | |||
Section 6.1 Conditions Precedent to Initial Incremental Purchase | 13 | |||
Section 6.2 Conditions Precedent to All Purchases and Reinvestments | 14 | |||
ARTICLE VII | ||||
COVENANTS | 15 | |||
Section 7.1 Affirmative Covenants of The Seller Parties | 15 | |||
Section 7.2 Negative Covenants of the Seller Parties | 23 | |||
ARTICLE VIII | ||||
ADMINISTRATION AND COLLECTION | 25 | |||
Section 8.1 Designation of Servicer | 25 | |||
Section 8.2 Duties of Servicer | 26 | |||
Section 8.3 Collection Notices | 27 | |||
Section 8.4 Responsibilities of Seller | 27 | |||
Section 8.5 Reports | 28 | |||
Section 8.6 Servicing Fees | 28 | |||
ARTICLE IX | ||||
AMORTIZATION EVENTS | 28 | |||
Section 9.1 Amortization Events | 28 | |||
Section 9.2 Remedies | 30 | |||
ARTICLE X | ||||
INDEMNIFICATION | 31 | |||
Section 10.1 Indemnities by the Seller | 31 | |||
Section 10.2 Indemnities by the Servicer | 33 | |||
Section 10.3 Increased Cost and Reduced Return | 34 | |||
Section 10.4 Other Costs and Expenses | 35 | |||
ARTICLE XI | ||||
THE AGENT | 35 | |||
Section 11.1 Authorization and Action | 35 | |||
Section 11.2 Delegation of Duties | 36 | |||
Section 11.3 Exculpatory Provisions | 36 | |||
Section 11.4 Reliance by Administrative Agent | 36 | |||
Section 11.5 Non-Reliance on Administrative Agent and Other Purchasers | 36 | |||
Section 11.6 Reimbursement and Indemnification | 37 | |||
Section 11.7 Administrative Agent in its Individual Capacity | 37 | |||
Section 11.8 Successor Administrative Agent | 37 |
Sch. C-vii
Page | ||||
ARTICLE XII | ||||
ASSIGNMENTS; PARTICIPATIONS | 38 | |||
Section 12.1 Assignments | 38 | |||
Section 12.2 Participations | 39 | |||
Section 12.3 Extension of Liquidity Termination Date | 39 | |||
Section 12.4 Terminating Financial Institutions | 40 | |||
ARTICLE XIII | ||||
MISCELLANEOUS | 40 | |||
Section 13.1 Waivers and Amendments | 40 | |||
Section 13.2 Notices | 41 | |||
Section 13.3 Ratable Payments | 42 | |||
Section 13.4 Protection of Ownership Interests of the Purchasers | 42 | |||
Section 13.5 Confidentiality | 42 | |||
Section 13.6 Bankruptcy Petition | 43 | |||
Section 13.7 Limitation of Liability | 43 | |||
Section 13.8 CHOICE OF LAW | 44 | |||
Section 13.9 CONSENT TO JURISDICTION | 44 | |||
Section 13.10 WAIVER OF JURY TRIAL | 44 | |||
Section 13.11 Integration; Binding Effect; Survival of Terms | 45 | |||
Section 13.12 Counterparts; Severability; Section References | 45 | |||
Section 13.13 Bank One Roles | 45 | |||
Section 13.14 Characterization | 45 | |||
Section 13.15 Intercreditor Agreement | 46 | |||
Exhibits and Schedules | ||||
Exhibit I | Definitions | |||
Exhibit II | Form of Purchase Notice | |||
Exhibit III | Places of Business of the Seller Parties; Locations of Records; Federal Employer Identification Number(s) | |||
Exhibit IV | Names of Collection Banks; Collection Accounts; Lock-Boxes; Specified Accounts | |||
Exhibit V | Form of Compliance Certificate | |||
Exhibit VI | Form of Collection Account Agreement | |||
Exhibit VII | Form of Assignment Agreement | |||
Exhibit VIII | Credit and Collection Policy | |||
Exhibit IX | Form of Monthly Report | |||
Exhibit X | Form of Reduction Notice | |||
Exhibit XI | Form of P.O. Box Transfer Notice | |||
Schedule A | Commitments | |||
Schedule B | Closing Documents | |||
Schedule C | Financial Covenant Definitions |
Sch. C-viii
to
RECEIVABLES PURCHASE AGREEMENT
Dated as of August 18, 2003
2
3
4
CONSUMERS RECEIVABLES FUNDING II, LLC, as Seller | ||||
By: | /s/ Laura L. Mountcastle | |||
NAME: Laura L. Mountcastle | ||||
Title: | President | |||
CONSUMERS ENERGY COMPANY, as Servicer | ||||
By: | /s/ Laura L. Mountcastle | |||
Name: | Laura L. Mountcastle | |||
Title: | Vice President | |||
FALCON ASSET SECURITIZATION CORPORATION | ||||
By: | /s/ Leo Loughead | |||
Name: | Leo Loughead | |||
Title: | Authorized Signatory | |||
BANK ONE, NA (MAIN OFFICE CHICAGO), as a Financial Institution and as Administrative Agent | ||||
By: | /s/ Leo Loughead | |||
Name: | Leo Loughead | |||
Title: | Managing Director, Capital Markets | |||
TO
RECEIVABLES PURCHASE AGREEMENT
2
3
CONSUMERS RECEIVABLES FUNDING II, LLC | ||||
By: | /s/ Laura L. Mountcastle | |||
Name: | Laura L. Mountcastle | |||
Title: | President | |||
CONSUMERS ENERGY COMPANY, as Servicer | ||||
By: | /s/ Laura L. Mountcastle | |||
Name: | Laura L. Mountcastle | |||
Title: | Vice President | |||
FALCON ASSET SECURITIZATION CORPORATION | ||||
By: | /s/ Leo V. Loughead | |||
Name: | Leo V. Loughead | |||
Title: | Authorized Signatory | |||
BANK ONE, NA (MAIN OFFICE CHICAGO), as a Financial Institution and Administrative Agent | ||||
By: | /s/ Leo V. Loughead | |||
Name: | Leo V. Loughead | |||
Title: | Managing Director Capital Markets | |||
TO
RECEIVABLES PURCHASE AGREEMENT
2
3
4
5
CONSUMERS RECEIVABLES FUNDING II, LLC | ||||
By: | /s/ Laura L. Mountcastle | |||
Name: | Laura L. Mountcastle | |||
Title: | President | |||
CONSUMERS ENERGY COMPANY, as Servicer | ||||
By: | /s/ Laura L. Mountcastle | |||
Name: | Laura L. Mountcastle | |||
Title: | Vice President and Treasurer | |||
FALCON ASSET SECURITIZATION CORPORATION | ||||
By: | /s/ Leo V. Loughead | |||
Name: | Leo V. Loughead | |||
Title: | Authorized Signatory | |||
BANK ONE, NA (MAIN OFFICE CHICAGO), as a Financial Institution and Administrative Agent | ||||
By: | /s/ Leo V. Loughead | |||
Name: | Leo V. Loughead | |||
Title: | Managing Director, Capital Markets | |||
TO
RECEIVABLES PURCHASE AGREEMENT
2
3
4
CONSUMERS RECEIVABLES FUNDING II, LLC | ||||||
By: | /s/ Laura L. Mountcastle | |||||
Title: President, Chief Executive Officer, Chief Financial Officer and Treasurer, Manager | ||||||
CONSUMERS ENERGY COMPANY, as Servicer | ||||||
By: | /s/ Laura L. Mountcastle | |||||
Name: Laura L. Mountcastle | ||||||
Title: Vice President and Treasurer |
FALCON ASSET SECURITIZATION CORPORATION | ||||||
By: | /s/ Leo V. Loughead | |||||
Title: Authorized Signatory | ||||||
BANK ONE, NA (MAIN OFFICE CHICAGO), as a | ||||||
Financial Institution and Administrative Agent | ||||||
By: | /s/ Leo V. Loughead | |||||
Name: Leo V. Loughead Title: Managing Director, Capital Markets |
TO
RECEIVABLES PURCHASE AGREEMENT
Aggregate Reduction | Required Notice Period | |||
≤ $100,000,000 | one Business Days | |||
>$100,000,000 | two Business Days |
2
3
FALCON ASSET SECURITIZATION CORPORATION | ||||||
By: | /s/ Leo V. Loughead | |||||
Name: Leo V. Loughead | ||||||
Title: Authorized Signatory | ||||||
JPMORGAN CHASE BANK, N.A., as a Financial Institution and Administrative Agent | ||||||
By: | /s/ Leo V. Loughead | |||||
Name: Leo V. Loughead | ||||||
Title: Managing Director |
CONSUMERS RECEIVABLES FUNDING II, LLC | ||||||
By: | /s/ Laura L. Mountcastle Title: Manager, 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 |
TO
RECEIVABLES PURCHASE AGREEMENT
2
3
4
FALCON ASSET SECURITIZATION CORPORATION | ||||||
By: | JPMorgan Chase Bank, N.A., as attorney in fact | |||||
By: | /s/ Leo V. Loughead Title: Authorized Signatory | |||||
JPMORGAN CHASE BANK, N.A., as a Financial | ||||||
Institution and Administrative Agent | ||||||
By: | /s/ Leo V. Loughead | |||||
Name: Leo V. Loughead Title: Managing Director |
CONSUMERS RECEIVABLES FUNDING II, LLC | ||||||
By: | /s/ Laura L. Mountcastle Title: Vice President and Treasurer | |||||
CONSUMERS ENERGY COMPANY, as servicer | ||||||
By: | /s/ Laura L. Mountcastle | |||||
Name: Laura L. Mountcastle Title: Vice President and Treasurer |
TO
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CONSUMERS RECEIVABLES FUNDING II, LLC | ||||
By: | /s/ Laura L. Mountcastle | |||
Name: | Laura L. Mountcastle | |||
Title: | President | |||
CONSUMERS ENERGY COMPANY, as Servicer | ||||
By: | /s/ Laura L. Mountcastle | |||
Name: | Laura L. Mountcastle | |||
Title: | Vice President | |||
FALCON ASSET SECURITIZATION CORPORATION | ||||||
By: JPMorgan Chase Bank, N.A., as attorney in fact | ||||||
By: | /s/ Mark J. Connor | |||||
Title: Vice President | ||||||
JPMORGAN CHASE BANK, N.A., as a Financial | ||||||
Institution and Administrative Agent | ||||||
By: | /s/ Mark J. Connor | |||||
Title: Vice President |
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CONSUMERS RECEIVABLES FUNDING II, LLC, as Seller | ||||
By: | /s/ Laura L. Mountcastle | |||
Name: | Laura L. Mountcastle | |||
Title: | President, CEO, CFO and Treasurer | |||
CONSUMERS ENERGY COMPANY, as Servicer | ||||
By: | /s/ Laura L. Mountcastle | |||
Name: | Laura L. Mountcastle | |||
Title: | Vice President and Treasurer | |||
FALCON ASSET SECURITIZATION CORPORATION | ||||||
By: JPMorgan Chase Bank, N.A., its attorney-in-fact | ||||||
By: | /s/ Leo Loughead | |||||
Title: Authorized Signatory | ||||||
JPMORGAN CHASE BANK, N.A., as a Financial | ||||||
Institution and Administrative Agent | ||||||
By: | /s/ Leo Loughead | |||||
Title: Managing Director |
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CONSUMERS RECEIVABLES FUNDING II, LLC, as Seller | ||||
By: | /s/ Laura L. Mountcastle | |||
Name: | Laura L. Mountcastle | |||
Title: | President, CEO, CFO & Treasurer | |||
CONSUMERS ENERGY COMPANY, as Servicer | ||||
By: | /s/ Laura L. Mountcastle | |||
Name: | Laura L. Mountcastle | |||
Title: | Vice President & Treasurer | |||
FALCON ASSET SECURITIZATION CORPORATION | ||||
By: JPMorgan Chase Bank, N.A., its attorney-in-fact | ||||
By: | /s/ Mark Connor | |||
Name: Mark Connor | ||||
Title. Vice President | ||||
JPMORGAN CHASE BANK, N.A., as a Financial | ||||
Institution and Administrative Agent | ||||
By: | /s/ Mark Connor | |||
Name: Mark Connor | ||||
Title: Vice President |
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CONSUMERS RECEIVABLES FUNDING II, LLC, as Seller | ||||
By: | /s/ Laura L. Mountcastle | |||
Name: | Laura L. Mountcastle | |||
Title: | President, CEO, CFO & Treasurer | |||
CONSUMERS ENERGY COMPANY, as Servicer | ||||
By: | /s/ Laura L. Mountcastle | |||
Name: | Laura L. Mountcastle | |||
Title: | Vice President & Treasurer |
FALCON ASSET SECURITIZATION COMPANY LLC (formerly Falcon Asset Securitization Corporation) By: JPMorgan Chase Bank, N.A., its attorney-in-fact | ||||
By: | /s/ Leo Loughead | |||
Leo Loughead | ||||
Managing Director | ||||
JPMORGAN CHASE BANK, N.A., as a Financial Institution and Administrative Agent | ||||
By: | /s/ Leo Loughead | |||
Leo Loughead | ||||
Managing Director | ||||
P O Box 2558
Houston, TX 77252-8391
Contact: Juanita Chretien
Phone: (713)216-8648
Fax: (713)216-4801
Email: juanita,l.chretien@chase.com
Specified Account: #000323010091
Specified Account: #1013233
Collection Account: #1242263
201 Townsend Street, Suite 600
M0936/00
Lansing, MI 48933
Contact: Douglas Henderson
Phone: (517)377-0559
Fax: (517)377-0502
Email:doug.henderson@abnamro.com
Specified Account: #4825285820
Collection Accounts: #1054516142, #1054518354 (Concentration Account)
4500 New Linden Hill
Wilmington, DE 19801
Contact: Laura Jones
Phone: (302)683-4496
Fax: (302)683-4933
Email:laura.b.jones@citigroup.com
Collection Accounts: #30489425, #27318
MC 7618
P O Box 75000
Detroit, MI 48275
Contact: Lorraine Edwards
Phone: (734)632-4536
Fax: (734)632-4545
Email: lorraine_m_edwards@comerica.com
Collection Accounts: #1851978096, #1851978898, #1852147071, #1852048774, #1851120384, #1076119914,
and #1000123354 (Concentration Account)
Lansing, MI 48937-0001
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CONSUMERS RECEIVABLES FUNDING II, LLC, as Seller | ||||
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 |
FALCON ASSET SECURITIZATION COMPANY LLC By: JPMorgan Chase Bank, N.A., its attorney-in-fact | ||||
By: | /s/ Mark Connor | |||
Name: | Mark Connor | |||
Title: | Vice President | |||
JPMORGAN CHASE BANK, N.A., as a Financial Institution and Administrative Agent | ||||
By: | /s/ Mark Connor | |||
Name: | Mark Connor | |||
Title: | Vice President |
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CONSUMERS RECEIVABLES FUNDING II, LLC, as Seller | ||||
By: | /s/ Thomas J. Webb | |||
Name: | Thomas J. Webb | |||
Title: | Executive Vice President | |||
CONSUMERS ENERGY COMPANY, as Servicer | ||||
By: | /s/ Thomas J. Webb | |||
Name: | Thomas J. Webb | |||
Title: | Executive Vice President and Chief Financial Officer | |||
FALCON ASSET SECURITIZATION COMPANY LLC | ||||
By: | JPMorgan Chase Bank, N.A., its attorney-in-fact | |||
By: | /s/ Mark Connor | |||
Name: Mark Connor Title: Vice President | ||||
JPMORGAN CHASE BANK, N.A., as a Financial | ||||
Institution and Administrative Agent | ||||
By: | /s/ Mark Connor | |||
Name: Mark Connor Title: Vice President |
FALCON ASSET SECURITIZATION COMPANY LLC | ||||
By: | JPMorgan Chase Bank, N.A., its attorney-in-fact | |||
By: | /s/ Mark Connor | |||
Name: Mark Connor Title: Vice President | ||||
JPMORGAN CHASE BANK, N.A., as a Financial | ||||
Institution and Administrative Agent | ||||
By: | /s/ Mark Connor | |||
Name: Mark Connor Title: Vice President |
FALCON ASSET SECURITIZATION COMPANY LLC | ||||
By: | JPMorgan Chase Bank, N.A., its attorney-in-fact | |||
By: | /s/ Mark Connor | |||
Name: Mark Connor Title: Vice President | ||||
JPMORGAN CHASE BANK, N.A., as a Financial | ||||
Institution and Administrative Agent | ||||
By: | /s/ Mark Connor | |||
Name: Mark Connor Title: Vice President |
FALCON ASSET SECURITIZATION COMPANY LLC | ||||
By: | JPMorgan Chase Bank, N.A., its attorney-in-fact | |||
By: | /s/ Mark Connor | |||
Name: Mark Connor Title: Vice President | ||||
JPMORGAN CHASE BANK, N.A., as a Financial | ||||
Institution and Administrative Agent | ||||
By: | /s/ Mark Connor | |||
Name: Mark Connor Title: Vice President |
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CONSUMERS RECEIVABLES FUNDING II, LLC, as Seller | ||||
By: | /s/ Laura L. Mountcastle | |||
Name: | Laura L. Mountcastle | |||
Title: | Treasurer, President, Chief Executive Officer and Chief Financial Officer | |||
CONSUMERS ENERGY COMPANY, as Servicer | ||||
By: | /s/ Laura L. Mountcastle | |||
Name: | Laura L. Mountcastle | |||
Title: | Vice President and Treasurer |
Signature Page to Amendment No. 13 to RPA
FALCON ASSET SECURITIZATION COMPANY LLC By: JPMorgan Chase Bank, N.A., its attorney-in-fact | ||||||
By: | /s/ Patrick Menichillo | |||||
Name: Patrick Menichillo | ||||||
Title: Vice President | ||||||
JPMORGAN CHASE BANK, N.A., as a Financial Institution and Administrative Agent | ||||||
By: | /s/ Patrick Menichillo | |||||
Name: Patrick Menichillo | ||||||
Title: Vice President |
Signature Page to Amendment No. 13 to RPA
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RECEIVABLES PURCHASE AGREEMENT
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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. 14 and Waiver
FALCON ASSET SECURITIZATION COMPANY LLC | ||||
By: | JPMorgan Chase Bank, N.A., its attorney-in-fact | |||
By: | /s/ Patrick Menichillo | |||
Name: | Patrick Menichillo | |||
Title: | Vice President | |||
JPMORGAN CHASE BANK, N.A., as a Financial Institution and Administrative Agent | ||||
By: | /s/ Patrick Menichillo | |||
Name: | Patrick Menichillo | |||
Title: | Vice President |
Signature Page to Amendment No. 14 and Waiver
Financial Institution | Commitment | |||
JPMorgan Chase Bank, N.A. (as successor by merger to Bank One, NA (Main Office Chicago)) | $ | 250,000,000 |
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CONSUMERS RECEIVABLES FUNDING II, LLC | ||||||
By: | /s/ Laura L. Mountcastle | |||||
Title: President, Chief Executive Officer, Chief Financial Officer and Treasurer | ||||||
CONSUMERS ENERGY COMPANY, as Servicer | ||||||
By: | /s/ Laura L. Mountcastle | |||||
Title: Vice President and Treasurer |
FALCON ASSET SECURITIZATION COMPANY LLC | ||||
By: JPMorgan Chase Bank, N.A., its attorney-in-fact | ||||
By: | /s/ Patrick Menichillo | |||
Title: Vice President | ||||
JPMORGAN CHASE BANK, N.A., as a Financial Institution and Administrative Agent | ||||
By: | /s/ Patrick Menichillo | |||
Title: Vice President |
(Attached.)
Exhibit XII to Receivables Purchase Agreement Consumers Date | ||||||||||||
Daily Receivables Report | ||||||||||||
I. Daily Receivables Rollforward | ||||||||||||
Beginning Receivables (Ending Receivables Balance from prior Weeklv Reoort) | ||||||||||||
Add: | Receivables (billed invoices) | |||||||||||
Receivables (unbilled = deliveries at sales or estimated price) | ||||||||||||
Less: | Cash Collections Dilutions (all issued credits) Charged-Off Receivables (<61 days past-due) | |||||||||||
Ending Receivables Balance | ||||||||||||
II. Net Receivables Balance | ||||||||||||
Eligible Receivables Pool Balance (from most recent Monthly Report) | ||||||||||||
Excess Concentrations (from most recent Monthly Report) | ||||||||||||
Originator Receivables Pool Balance (from most recent Monthly Report) | ||||||||||||
Weekly Eligible Receivables Pool Ratio | #DIV/01 | |||||||||||
Weekly Excess Concentrations Ratio | #DIV/01 | |||||||||||
Weekly Eligible Receivables Pool Balance | #DIV/01 | |||||||||||
Less: | Weekly Excess Concentrations | #DIV/01 | ||||||||||
Net Receivables Balance (“NRB”) | #DIV/01 | |||||||||||
III. Calculation of Potential Capital | ||||||||||||
Loss Reserve % (from most recent Monthly Report) | ||||||||||||
Dilution Reserve % (from most recent Monthly Report) | ||||||||||||
Discount Reserve % (from most recent Monthly Report) | ||||||||||||
Minimum Seller Interest | ||||||||||||
Net Receivables Balance (from II above) | #DIV/01 | |||||||||||
Weekly Loss Reserve | #DIV/01 | |||||||||||
Weekly Dilution Reserve | #DIV/01 | |||||||||||
Weeklv Discount Reserve | #DIV/01 | |||||||||||
Less: | Weekly Aggregate Reserves | #DIV/01 | ||||||||||
Less: | Weekly Minimum Seller Interest | #DIV/01 | ||||||||||
Potential Capital (this weeklv reoprt) #DIV/01 | ||||||||||||
IV. Purchase Facility — Increases/Decreases | ||||||||||||
Facility Limit | $ | 25,000,000 | ||||||||||
Potential Capital (maximum available funding) | #DIV/01 |
Capital Outstanding total all Purchasers (immediately prior to this Report date) | |||||||||||||
Excess / (Shortfall) | #DIV/01 | ||||||||||||
Available Funding Increase | #DIV/01 | ||||||||||||
Required Capital Paydown | #DIV/01 | ||||||||||||
Current Purchaser Interest (net of Minimum Seller Interest must be <95%) #DIV/01 | |||||||||||||
In Compliance? #DIV/01 | |||||||||||||
Potential Purchaser Interest (net of Minimum Seller Interest must be <95%) #DIV/01 | |||||||||||||
In Compliance? #DIV/01 | |||||||||||||
Is a Purchase being requested? | #DIV/01 | ||||||||||||
Falcon/PREFCO Related Group Pro Rata Share | 100.00 | % | |||||||||||
Purchase Notice Request for PREFCO | #DIV/01 | ||||||||||||
Reduction Notice Request for PREFCO | #DIV/01 | ||||||||||||
Purchase Notice Request for | #DIV/01 | ||||||||||||
Reduction Notice Request for | #DIV/01 | ||||||||||||
The undersigned hereby represent and warrants that the foregoing is a true and accurate accounting with respect to the outstandings of Consumers Energy Co in accordance with the conformed Receivables Purchase Agreement date as of February 12, 2009 and that all Representations and Warranties are restated and reaffirmed. |
Signed by: | ||||
Title: | Authorized Officer | |||