EX-10.(A) 4 k23633exv10wxay.htm AMENDMENT NO.1 TO $300 MILLION SEVENTH AMENDED & RESTATED CREDIT AGREEMENT

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EXHIBIT 10 (a)
EXECUTION COPY
AMENDMENT NO. 1
This AMENDMENT NO. 1, dated as of December 19, 2007 (this “Amendment”), is by and among CMS Energy Corporation, a Michigan corporation (the “Borrower”), the financial institutions parties to the “Credit Agreement” (defined below) as lenders (the “Lenders”), and Citicorp USA, Inc. (“CUSA”), as administrative agent (in such capacity, the “Administrative Agent”).
WHEREAS, the Borrower, the Lenders, the Administrative Agent and CUSA, as collateral agent, have entered into a Seventh Amended and Restated Credit Agreement, dated as of April 2, 2007 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”; capitalized terms not defined herein are used as defined in the Credit Agreement);
WHEREAS, the Borrowers, the requisite number of Lenders under Section 11.01 of the Credit Agreement and the Administrative Agent have agreed, subject to the terms and conditions hereof, to amend the Credit Agreement as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises set forth above, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Borrowers, the requisite number of Lenders under Section 11.01 of the Credit Agreement and the Administrative Agent agree as follows:
1. Amendment to Credit Agreement. Subject to the conditions set forth in Paragraph 2 hereof, the Credit Agreement is hereby amended by amending and restating the definition of “Consolidated EBITDA” set forth in Section 1.01 of the Credit Agreement in its entirety as follows:
“Consolidated EBITDA” means, with reference to any period, the pretax operating income of the Borrower and its Subsidiaries (“Pretax Operating Income”) for such period plus, to the extent included in determining Pretax Operating Income (without duplication), (i) depreciation, depletion and amortization, (ii) non-cash write-offs and write-downs, including, without limitation, write-offs or write-downs related to the sale of assets, impairment of assets and loss on contracts, (ii) non-cash gains or losses on mark-to-market valuation of contracts and (iv) the cash or non-cash costs and expense charges related to the termination, buy-out or amendment of electricity sales agreements associated with Dearborn Industrial Generation, L.L.C. and/or CMS ERM Michigan LLC, or other agreements related thereto in an aggregate amount not to exceed $325,000,000 during the life of the Agreement, in each case in accordance with GAAP consistently applied, all calculated for the Borrower and its Subsidiaries on a consolidated basis for such period; provided, however, that Consolidated EBITDA shall not include any operating income attributable to that portion of the revenues of Consumers dedicated to the repayment of the Securitized Bonds.

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2. Conditions to Effectiveness. The amendments contemplated by this Amendment shall become effective upon the satisfaction of the following conditions:
(a) The Administrative Agent shall have received duly executed counterparts hereof from each of the requisite number of Lenders under Section 11.01 of the Credit Agreement, the Administrative Agent and the Borrower.
(b) As of the date hereof, all representations and warranties contained in this Amendment shall be true and correct in all material respects.
(c) As of the date hereof no event shall have occurred and be continuing which constitutes an Event of Default or a Default.
3. Reference to and Effect on the Loan Documents. On and after the effective date of this Amendment, each reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Credit Agreement shall mean and be a reference to the Credit Agreement, as modified by this Amendment, and each reference in the other Loan Documents to “the Credit Agreement”, “thereunder”, “thereof” or words of like import referring to the Credit Agreement shall mean and be a reference to the Credit Agreement, as modified by this Amendment. Except as specifically set forth above, the Credit Agreement and all other Loan Documents are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed.
4. Miscellaneous.
(a) Representations and Warranties. The Borrower represents and warrants that:
(i) The representations and warranties contained in Section 7.01 of the Credit Agreement (other than those contained in subsection (f) thereof) are correct in all material respects on and as of the date hereof (unless such representation and warranty is made as of a specific date, in which case such representation and warranty shall be true and correct as of such date), and no event has occurred and is continuing that constitutes a Default or an Event of Default;
(ii) Each Loan Party is duly organized and validly existing and in good standing under the laws of the jurisdiction of its organization and has the requisite power and authority to execute, deliver and carry out the terms and provisions of this Amendment and has taken or caused to be taken all necessary corporate or limited liability company action to authorize the execution, delivery and performance of this Amendment;
(iii) No consent of any other person, including, without limitation, shareholders or creditors of any Loan Party, and no action of, or filing with, any governmental or public body or authority, is required to authorize, or is otherwise required in connection with the execution, delivery and performance of, this Amendment;

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(iv) This Amendment has been duly executed and delivered by a duly authorized officer on behalf of the Loan Parties party thereto, and constitutes the legal, valid and binding obligations of each Loan Party, enforceable in accordance with its terms, except as enforcement thereof may be subject to the effect of any applicable (A) bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditors’ rights generally and (B) general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law); and
(v) The execution, delivery and performance of this Amendment will not violate any law, statute or regulation applicable to any Loan Party or any order or decree of any court or governmental instrumentality applicable to it, or conflict with, or result in the breach of, or constitute a default under, any of its contractual obligations.
(b) No Waiver. Nothing herein contained shall constitute a waiver or be deemed to be a waiver, of any existing Defaults or Events of Default, and the Lenders and the Administrative Agent reserve all rights and remedies granted to them by the Credit Agreement, by the other Loan Documents, by law and otherwise.
(c) Costs and Expenses. The Borrower agrees to pay all reasonable costs and out-of-pocket expenses (including, without limitation, reasonable attorneys’ fees) incurred by the Administrative Agent in connection with the preparation, execution and enforcement of this Amendment.
(d) 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.
(e) Counterparts. This Amendment may be executed in any number of separate counterparts, each of which shall collectively and separately constitute one agreement. Delivery of an executed counterpart of a signature page to this Amendment by facsimile shall be effective as delivery of a manually executed counterpart of this Amendment.
(f) GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAWS OF THE STATE OF NEW YORK, BUT OTHERWISE WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES).
[signature pages follow]

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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized, as of the date first above written.

| CMS ENERGY CORPORATION, as Borrower |
| By: | /s/ Laura L. Mountcastle |
|  | Name: | Laura L. Mountcastle |
|  | Title: | Vice President & Treasurer |
| CITICORP USA, INC., as Administrative Agent |
| By: |  |
|  | Name: |  |
|  | Title: |  |
| CITIBANK, N.A., as a Lender |
| By: |  |
|  | Name: |  |
|  | Title: |  |

Signature Page to Amendment No. 1 to
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)

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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized, as of the date first above written.

| CMS ENERGY CORPORATION, as Borrower |
| By: |  |
|  | Name: |  |
|  | Title: |  |
| CITICORP USA, INC., as Administrative Agent |
| By: | /s/ Shannon Sweeney |
|  | Name: | Shannon Sweeney |
|  | Title: | Vice President |
| CITIBANK, N.A., as a Lender |
| By: | /s/ Shannon Sweeney |
|  | Name: | Shannon Sweeney |
|  | Title: | Vice President |

Signature Page to Amendment No. 1 to
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)

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| UNION BANK OF CALIFORNIA, N.A., as a Lender |
| By: | /s/ Bryan Read |
|  | Name: | Bryan Read |
|  | Title: | Vice President |
| BARCLAYS BANK PLC, as a Lender |
| By: |  |
|  | Name: |  |
|  | Title: |  |
| JPMORGAN CHASE BANK, N.A., as a Lender |
| By: |  |
|  | Name: |  |
|  | Title: |  |
| WACHOVIA BANK, NATIONAL ASSOCIATION, as a Lender |
| By: |  |
|  | Name: |  |
|  | Title: |  |

Signature Page to Amendment No. 1 to
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)

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| UNION BANK OF CALIFORNIA, N.A., as a Lender |
| By: |  |
|  | Name: |  |
|  | Title: |  |
| BARCLAYS BANK PLC, as a Lender |
| By: | /s/ Sydney G. Dennis |
|  | Name: | Sydney G. Dennis |
|  | Title: | Director |
| JPMORGAN CHASE BANK, N.A., as a Lender |
| By: |  |
|  | Name: |  |
|  | Title: |  |

Signature Page to Amendment No. 1 to
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)

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| UNION BANK OF CALIFORNIA, N.A., as a Lender |
| By: |  |
|  | Name: |  |
|  | Title: |  |
| BARCLAYS BANK PLC, as a Lender |
| By: |  |
|  | Name: |  |
|  | Title: |  |
| JPMORGAN CHASE BANK, N.A., as a Lender |
| By: | /s/ Michael DeForge |
|  | Name: | Michael DeForge |
|  | Title: | Executive Director |
| WACHOVIA BANK, NATIONAL ASSOCIATION, as a Lender |
| By: |  |
|  | Name: |  |
|  | Title: |  |

Signature Page to Amendment No. 1 to
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)

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| UNION BANK OF CALIFORNIA, N.A., as a Lender |
| By: |  |
|  | Name: |  |
|  | Title: |  |
| BARCLAYS BANK PLC, as a Lender |
| By: |  |
|  | Name: |  |
|  | Title: |  |
| JPMORDAN CHASE BANK, N.A., as a Lender |
| By: |  |
|  | Name: |  |
|  | Title: |  |
| WACHOVIA BANK, NATIONAL ASSOCIATION, as a Lender |
| By: | /s/ FREDRICK W. PRICE |
|  | Name: | FREDRICK W. PRICE |
|  | Title: | MANAGING DIRECTOR |

Signature Page to Amendment No. 1 to
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)

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| MERRILL LYNCH BANK USA, as a Lender |
| By: | /s/ Louis Alder |
|  | Name: | Louis Alder |
|  | Title: | Director |
| BNP PARIBAS, as a Lender |
| By: |  |
|  | Name: |  |
|  | Title: |  |
| By: |  |
|  | Name: |  |
|  | Title: |  |
| SUNTRUST BANK, as a Lender |
| By: |  |
|  | Name: |  |
|  | Title: |  |
| UBS LOAN FINANCE LLC, as a Lender |
| By: |  |
|  | Name: |  |
|  | Title: |  |

Signature Page to Amendment No. 1 to
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)

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| MERRILL LYNCH BANK USA, as a Lender |
| By: |  |
|  | Name: |  |
|  | Title: |  |
| BNP PARIBAS, as a Lender |
| By: | /s/ FRANCIS J. DELANEY |
|  | Name: | FRANCIS J. DELANEY |
|  | Title: | Managing Director |
| By: | /s/ DENIS O’MEARA |
|  | Name: | DENIS O’MEARA |
|  | Title: | Managing Director |
| SUNTRUST BANK, as a Lender |
| By: |  |
|  | Name: |  |
|  | Title: |
| UBS LOAN FINANCE LLC, as a Lender |
| By: |  |
|  | Name: |  |
|  | Title: |

Signature Page to Amendment No. 1 to
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)

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| MERRILL LYNCH BANK USA, as a Lender |
| By: |  |
|  | Name: |  |
|  | Title: |  |
| BNP PARIBAS, as a Lender |
| By: |  |
|  | Name: |  |
|  | Title: |  |
| By: |  |
|  | Name: |  |
|  | Title: |  |
| SUNTRUST BANK, as a Lender |
| By: | /s/ Yann Pirio |
|  | Name: | Yann Pirio |
|  | Title: | Vice President |
| UBS LOAN FINANCE LLC, as a Lender |
| By: |  |
|  | Name: |  |
|  | Title: |  |

Signature Page to Amendment No. 1 to
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)

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| MERRILL LYNCH BANK USA, as a Lender |
| By: |  |
|  | Name: |  |
|  | Title: |  |
| BNP PARIBAS, as a Lender |
| By: |  |
|  | Name: |  |
|  | Title: |  |
| By: |  |
|  | Name: |  |
|  | Title: |  |
| SUNTRUST BANK, as a Lender |
| By: |  |
|  | Name: |  |
|  | Title: |  |
| UBS LOAN FINANCE LLC, as a Lender |
| By: | /s/ David B. Julie |
|  | Name: | David B. Julie |
|  | Title: | Associate Director |
| By: | /s/ Irja R. Otsa |
|  | Name: | Irja R. Otsa |
|  | Title: | Associate Director |

Signature Page to Amendment No. 1 to
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)

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| DEUTSCHE BANK TRUST COMPANY AMERICAS, as a Lender |
| By: | /s/ Illegible |
|  | Name: |  |
|  | Title: |  |
| By: | /s/ Scottye Lindsey |
|  | Name: | Scottye Lindsey |
|  | Title: | Director |
| KEYBANK NATIONAL ASSOCIATION, as a Lender |
| By: |  |
|  | Name: |  |
|  | Title: |  |
| COMERICA BANK, as a Lender |
| By: |  |
|  | Name: |  |
|  | Title: |  |
| LASALLE BANK, NATIONAL ASSOCIATION, as a Lender |
| By: |  |
|  | Name: |  |
|  | Title: |  |

Signature Page to Amendment No. 1 to
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)

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| DEUTSCHE BANK TRUST COMPANY AMERICAS, as a Lender |
| By: |  |
|  | Name: |  |
|  | Title: |  |
| By: |  |
|  | Name: |  |
|  | Title: |  |
| KEYBANK NATIONAL ASSOCIATION, as a Lender |
| By: | /s/ Sherrie I. Manson |
|  | Name: | Sherrie I. Manson |
|  | Title: | Senior Vice President |
| COMERICA BANK, as a Lender |
| By: |  |
|  | Name: |  |
|  | Title: |  |
| LASALLE BANK, NATIONAL ASSOCIATION, as a Lender |
| By: |  |
|  | Name: |  |
|  | Title: |  |

Signature Page to Amendment No. 1 to
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)

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| DEUTSCHE BANK TRUST COMPANY AMERICAS, as a Lender |
| By: |  |
|  | Name: |  |
|  | Title: |  |
| By: |  |
|  | Name: |  |
|  | Title: |  |
| KEYBANK NATIONAL ASSOCIATION, as a Lender |
| By: |  |
|  | Name: |  |
|  | Title: |  |
| COMERICA BANK, as a Lender |
| By: | /s/ BLAKE ARNETT |
|  | Name: | BLAKE ARNETT |
|  | Title: | VICE PRESIDENT |
| LASALLE BANK, NATIONAL ASSOCIATION, as a Lender |
| By: |  |
|  | Name: |  |
|  | Title: |  |

Signature Page to Amendment No. 1 to
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)

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| DEUTSCHE BANK TRUST COMPANY AMERICAS, as a Lender |
| By: |  |
|  | Name: |  |
|  | Title: |  |
| By: |  |
|  | Name: |  |
|  | Title: |  |
| KEYBANK NATIONAL ASSOCIATION, as a Lender |
| By: |  |
|  | Name: |  |
|  | Title: |  |
| COMERICA BANK, as a Lender |
| By: |  |
|  | Name: |  |
|  | Title: |  |
| LASALLE BANK MIDWEST, N.A., as a Lender |
| By: | /s/ GREGORY E. CASTLE |
|  | Name: | GREGORY E. CASTLE |
|  | Title: | FIRST VICE PRESIDENT |

Signature Page to Amendment No. 1 to
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)

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| CREDIT SUISSE, CAYMAN ISLANDS BRANCH, as a Lender |
| By: | /s/ Brian Caldwell |
|  | Name: | Brian Caldwell |
|  | Title: | Director |
| By: | /s/ Laurence Lapeyre |
|  | Name: | Laurence Lapeyre |
|  | Title: | Associate |
| FIFTH THIRD BANK, as a Lender |
| By: |  |
|  | Name: |  |
|  | Title: |  |
| WELLS FARGO BANK, NATIONAL ASSOCIATION, as a Lender |
| By: |  |
|  | Name: |  |
|  | Title: |  |
| THE BANK OF NOVA SCOTIA, as a Lender |
| By: |  |
|  | Name: |  |
|  | Title: |  |
| BAYERISCHE LANDESBANK, as a Lender |
| By: |  |
|  | Name: |  |
|  | Title: |  |

Signature Page to Amendment No. 1 to
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)

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| CREDIT SUISSE, CAYMAN ISLANDS BRANCH, as a Lender |
| By: |  |
|  | Name: |  |
|  | Title: |  |
| FIFTH THIRD BANK, as a Lender |
| By: | /s/ BRIAN JELINSKI |
|  | Name: | BRIAN JELINSKI |
|  | Title: | AVP |
| WELLS FARGO BANK, NATIONAL ASSOCIATION, as a Lender |
| By: |  |
|  | Name: |  |
|  | Title: |  |
| THE BANK OF NOVA SCOTIA, as a Lender |
| By: |  |
|  | Name: |  |
|  | Title: |  |
| BAYERISCHE LANDESBANK, as a Lender |
| By: |  |
|  | Name: |  |
|  | Title: |  |

Signature Page to Amendment No. 1 to
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)

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| CREDIT SUISSE, CAYMAN ISLANDS BRANCH, as a Lender |
| By: |  |
|  | Name: |  |
|  | Title: |  |
| FIFTH THIRD BANK, as a Lender |
| By: |  |
|  | Name: |  |
|  | Title: |  |
| WELLS FARGO BANK, NATIONAL ASSOCIATION, as a Lender |
| By: |  |
|  | Name: |  |
|  | Title: |  |
| THE BANK OF NOVA SCOTIA, as a Lender |
| By: | /s/ Thane Rattew |
|  | Name: | Thane Rattew |
|  | Title: | Managing Director |
| BAYERISCHE LANDESBANK, as a Lender |
| By: |  |
|  | Name: |  |
|  | Title: |  |

Signature Page to Amendment No. 1 to
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)

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| CREDIT SUISSE, CAYMAN ISLANDS BRANCH, as a Lender |
| By: |  |
|  | Name: |  |
|  | Title: |  |
| FIFTH THIRD BANK, as a Lender |
| By: |  |
|  | Name: |  |
|  | Title: |  |
| WELLS FARGO BANK, NATIONAL ASSOCIATION, as a Lender |
| By: |  |
|  | Name: |  |
|  | Title: |  |
| THE BANK OF NOVA SCOTIA, as a Lender |
| By: |  |
|  | Name: |  |
|  | Title: |  |
| BAYERISCHE LANDESBANK, as a Lender |
| By: | /s/ John Gregory /s/ Nikolal von Mengden |
|  | Name: | John Gregory Nikolal von Mengden |
|  | Title: | First Vice President Senior Vice President |

Signature Page to Amendment No. 1 to
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)

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| HUNTINGTON NAITONAL BANK, as a Lender |
| By: | /s/ Patrick Barbour |
|  | Name: | Patrick Barbour |
|  | Title: | Vice President |
| GOLDMAN SACHS CREDIT PARTNERS, L.P., as a Lender |
| By: |  |
|  | Name: |  |
|  | Title: |  |
| SUMITOMO MITSUI BANKING CORP., as a Lender |
| By: |  |
|  | Name: |  |
|  | Title: |  |

Signature Page to Amendment No. 1 to
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)

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| HUNTINGTON NAITONAL BANK, as a Lender |
| By: |  |
|  | Name: |  |
|  | Title: |  |
| GOLDMAN SACHS CREDIT PARTNERS, L.P., as a Lender |
| By: | /s/ Pedro Ramirez |
|  | Name: | Pedro Ramirez |
|  | Title: | Authorized Signatory |
| SUMITOMO MITSUI BANKING CORP., as a Lender |
| By: |  |
|  | Name: |  |
|  | Title: |  |

Signature Page to Amendment No. 1 to
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)

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| SUMITOMO MITSUI BANKING CORP., as a Lender |
| By: | /s/ Masakazu Hasegawa |
|  | Name: | Masakazu Hasegawa |
|  | Title: | Joint General Manager |

Signature Page to Amendment No. 1 to
Seventh Amended and Restated Credit Agreement
(CMS Energy Corporation)