EXHIBIT 10(c)
EXECUTION COPY
AMENDED AND RESTATED CASH COLLATERAL AGREEMENT
THIS AMENDED AND RESTATED CASH
COLLATERAL AGREEMENT, dated as of April 2, 2007 (this
“ Agreement ”)
, made by CMS ENERGY CORPORATION, a Michigan
corporation (the “ Pledgor
”), to CITICORP USA, INC. (“
CUSA ”), as administrative agent (in
such capacity, the Administrative Agent
”) for the lenders (the “
Lenders ”) parties to the Credit
Agreement (as hereinafter defined) and as collateral agent (in such
capacity, the “ Collateral Agent
”) for the Lenders.
PRELIMINARY STATEMENTS
(1) The
Administrative Agent, the Collateral Agent and the Lenders have
entered into that certain Seventh Amended and Restated Credit
Agreement, dated as of the date hereof (said Agreement, as it may
hereafter be amended or otherwise modified from time to time, being
the “ Credit Agreement ”,
the terms defined therein and not otherwise defined herein being
used herein as therein defined), with the Pledgor.
(2) The
Pledgor and the Administrative Agent have previously entered into
that certain Cash Collateral Agreement, dated as of August 3,
2005 (as amended, restated, supplemented or otherwise modified
prior to the date hereof, the “ Existing
Agreement ”) pursuant to which cash collateral
is deposited by the Administrative Agent in a special
non-interest-bearing cash collateral account (the “
Account ”) with the Collateral Agent at
its office at 388 Greenwich Street, New York, New York 10013,
Account No. 30579578 (or at such other office of the
Collateral Agent as the Collateral Agent may, from time to time,
notify the Pledgor and the Administrative Agent), in the name of
the Pledgor but under the sole control and dominion of the
Collateral Agent and subject to the terms of this Agreement and the
Credit Agreement.
(3) The
Pledgor and the Administrative Agent have agreed to amend and
restate the Existing Agreement pursuant to this Agreement.
NOW
THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Pledgor hereby agrees with the Collateral
Agent and the Administrative Agent, for their benefit and the
ratable benefit of the Lenders and the LC Issuer, as follows:
SECTION 1. Pledge and Assignment . The Pledgor
hereby pledges and assigns to the Collateral Agent, for its benefit
and the ratable benefit of the Administrative Agent, the Lenders
and the LC Issuer, and grants to the Collateral Agent, for its
benefit and the ratable benefit of the Administrative Agent, the
Lenders and the LC Issuer, a security interest in, the following
collateral (collectively, the “
Collateral ):
(i) the Account, all funds held
therein and all certificates and instruments, if any, from time to
time representing or evidencing the Account;
(ii) all Investments (as hereinafter
defined) from time to time, and all certificates and instruments,
if any, from time to time representing or evidencing the
Investments;
(iii) all notes, certificates of
deposit, deposit accounts, checks and other instruments from time
to time hereafter delivered to or otherwise possessed by the
Collateral Agent for or on behalf of the Pledgor in substitution
for or in addition to any or all of the then existing
Collateral;
(iv) all interest, dividends, cash,
instruments and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange
for any or all of the then existing Collateral; and
(v) all proceeds of any and all of
the foregoing Collateral.
SECTION 2. Security for Obligations . This Agreement
secures the payment of all reimbursement obligations of the Pledgor
now or hereafter existing with respect to LC Outstandings and all
obligations of the Pledgor now or hereafter existing under this
Agreement (all such obligations of the Pledgor being the “
Secured Obligations ”). Without limiting the
generality of the foregoing, this Agreement secures the payment of
all amounts which constitute part of the Secured Obligations and
which remain outstanding after the Commitment Termination Date or
otherwise would be owed by the Pledgor to the Administrative Agent,
the Collateral Agent or the Lenders under the Credit Agreement and
the Promissory Notes (if any) but for the fact that they are
unenforceable or not allowable due to the existence of a
bankruptcy, reorganization or similar proceeding involving the
Pledgor.
SECTION 3. Delivery of Collateral . All certificates
or instruments, if any, representing or evidencing the Collateral
shall be delivered to and held by or on behalf of the Collateral
Agent pursuant hereto and shall be in suitable form for transfer by
delivery, or shall be accompanied by duly executed instruments of
transfer or assignment in blank, all in form and substance
satisfactory to the Collateral Agent. The Collateral Agent shall
have the right, at any time upon the occurrence and during the
continuance of an Event of Default, in its discretion and without
notice to the Pledgor, to transfer to or to register in the name of
the Collateral Agent or any of its nominees any or all of the