EXHIBIT 10.2
AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT
DATED AS OF SEPTEMBER 30, 2005
BY AND AMONG
P&L RECEIVABLES COMPANY, LLC,
AS SELLER
AND
PEABODY ENERGY CORPORATION,
AS INITIAL SERVICER
AND
ARCLAR COMPANY, LLC
BLACK BEAUTY COAL COMPANY
TWENTYMILE COAL COMPANY
CABALLO COAL COMPANY
EASTERN ASSOCIATED COAL, LLC
COALSALES II, LLC
PEABODY COAL COMPANY, LLC
PEABODY WESTERN COAL COMPANY
POWDER RIVER COAL COMPANY
PEABODY HOLDING COMPANY, INC.
COALTRADE, LLC
COALTRADE INTERNATIONAL, LLC
COALSALES, LLC,
AS SUB-SERVICERS
AND
MARKET STREET FUNDING CORPORATION,
AS ISSUER
AND
THE FINANCIAL INSTITUTIONS FROM TIME TO TIME PARTIES HERETO,
AS LC PARTICIPANTS
AND
PNC BANK, NATIONAL ASSOCIATION,
AS ADMINISTRATOR AND AS LC BANK
TABLE OF CONTENTS
PAGE
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ARTICLE I. AMOUNTS AND TERMS OF THE PURCHASES............................... 2
Section 1.1 Purchase Facility........................................... 2
Section 1.2 Making Purchases............................................ 3
Section 1.3 Purchased Interest Computation.............................. 4
Section 1.4 Settlement Procedures....................................... 5
Section 1.5 Fees. 8
Section 1.6 Payments and Computations, Etc.............................. 8
Section 1.7 Increased Costs............................................. 8
Section 1.8 Requirements of Law......................................... 9
Section 1.9 Inability to Determine Euro-Rate............................ 10
Section 1.10 Extension of the Liquidity Termination Date and
Scheduled Commitment Termination Date.................... 11
Section 1.11 Letters of Credit........................................... 12
Section 1.12 Issuance of Letters of Credit............................... 12
Section 1.13 Requirements For Issuance of Letters of Credit.............. 13
Section 1.14 Disbursements, Reimbursement................................ 13
Section 1.15 Repayment of Participation Advances......................... 14
Section 1.16 Documentation............................................... 14
Section 1.17 Determination to Honor Drawing Request...................... 14
Section 1.18 Nature of Participation and Reimbursement Obligations....... 15
Section 1.19 Indemnity................................................... 16
Section 1.20 Liability for Acts and Omissions............................ 16
ARTICLE II. REPRESENTATIONS AND WARRANTIES; COVENANTS; TERMINATION EVENTS... 18
Section 2.1 Representations and Warranties; Covenants................... 18
Section 2.2 Termination Events.......................................... 18
ARTICLE III. INDEMNIFICATION................................................ 18
Section 3.1 Indemnities by the Seller................................... 18
Section 3.2 Indemnities by the Servicer................................. 20
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TABLE OF CONTENTS
(continued)
PAGE
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ARTICLE IV. ADMINISTRATION AND COLLECTIONS.................................. 21
Section 4.1 Appointment of the Servicer................................. 21
Section 4.2 Duties of the Servicer...................................... 22
Section 4.3 Lock-Box Arrangements....................................... 23
Section 4.4 Enforcement Rights.......................................... 23
Section 4.5 Responsibilities of the Seller.............................. 24
Section 4.6 Servicing Fee............................................... 24
Section 4.7 Authorization and Action of the Administrator............... 25
Section 4.8 Nature of Administrator's Duties............................ 25
Section 4.9 UCC Filings................................................. 25
Section 4.10 Administrator's Reliance, Etc............................... 26
Section 4.11 Administrator and Affiliates................................ 26
Section 4.12 Purchase Decision........................................... 27
Section 4.13 Indemnification............................................. 27
Section 4.14 Successor Administrator..................................... 27
ARTICLE V. MISCELLANEOUS.................................................... 28
Section 5.1 Amendments, Etc............................................. 28
Section 5.2 Notices, Etc................................................ 28
Section 5.3 Successors and Assigns; Assignability; Participations....... 29
Section 5.4 Costs, Expenses and Taxes................................... 30
Section 5.5 No Proceedings; Limitation on Payments...................... 31
Section 5.6 Confidentiality............................................. 31
Section 5.7 GOVERNING LAW AND JURISDICTION.............................. 31
Section 5.8 Execution in Counterparts................................... 32
Section 5.9 Survival of Termination; Non-Waiver......................... 32
Section 5.10 WAIVER OF JURY TRIAL........................................ 32
Section 5.11 Entire Agreement............................................ 32
Section 5.12 Headings.................................................... 33
Section 5.13 Issuer's Liabilities........................................ 33
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TABLE OF CONTENTS
(continued)
PAGE
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EXHIBIT I DEFINITIONS
EXHIBIT II CONDITIONS OF PURCHASES
EXHIBIT III REPRESENTATIONS AND WARRANTIES
EXHIBIT IV COVENANTS
EXHIBIT V TERMINATION EVENTS
SCHEDULE I CREDIT AND COLLECTION POLICY
SCHEDULE II LOCK-BOX BANKS AND LOCK-BOX ACCOUNTS
SCHEDULE III TRADE NAMES
SCHEDULE IV OFFICE LOCATIONS
ANNEX A FORM OF INFORMATION PACKAGE
ANNEX B FORM OF PURCHASE NOTICE
ANNEX C FORM OF PAYDOWN NOTICE
ANNEX D FORM OF COMPLIANCE CERTIFICATE
ANNEX E FORM OF LETTER OF CREDIT APPLICATION
ANNEX F FORM OF TOTAL LEVERAGE CERTIFICATE
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This AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT (as amended,
supplemented or otherwise modified from time to time, this "Agreement") is
entered into as of September 30, 2005, by and among P&L RECEIVABLES COMPANY,
LLC, a Delaware limited liability company, as seller (the "Seller"), PEABODY
ENERGY CORPORATION, a Delaware corporation ("Peabody"), as initial servicer (in
such capacity, collectively, together with its successors and permitted assigns
in such capacity, the "Servicer"), ARCLAR COMPANY, LLC, an Indiana limited
liability company, BLACK BEAUTY COAL COMPANY, an Indiana partnership, TWENTYMILE
COAL COMPANY, a Delaware corporation, CABALLO COAL COMPANY, a Delaware
corporation, EASTERN ASSOCIATED COAL, LLC, a West Virginia limited liability
company, COALSALES II, LLC, a Delaware limited liability company, PEABODY COAL
COMPANY, LLC, a Delaware limited liability company, PEABODY WESTERN COAL
COMPANY, a Delaware corporation, POWDER RIVER COAL COMPANY, a Delaware
corporation, PEABODY HOLDING COMPANY, INC., a New York corporation, COALTRADE,
LLC, a Delaware limited liability company, COALTRADE INTERNATIONAL, LLC, a
Delaware limited liability company, COALSALES, LLC, a Delaware limited liability
company (each a "Sub-Servicer" and collectively the "Sub-Servicers"), MARKET
STREET FUNDING CORPORATION, a Delaware corporation (together with its successors
and permitted assigns, the "Issuer"), THE FINANCIAL INSTITUTIONS LISTED ON THE
SIGNATURE PAGES HEREOF (together with their successors and permitted assigns in
such capacity, the "LC Participants"), PNC BANK, NATIONAL ASSOCIATION, a
national banking association ("PNC"), as administrator (in such capacity,
together with its successors and assigns in such capacity, the "Administrator")
and as issuer of Letters of Credit (in such capacity, together with its
successors and assigns in such capacity, the "LC Bank").
PRELIMINARY STATEMENTS. Certain terms that are capitalized and used
throughout this Agreement are defined in Exhibit I. References in the Exhibits
hereto to the "Agreement" refer to this Agreement, as amended, supplemented or
otherwise modified from time to time.
The Seller desires to sell, transfer and assign an undivided variable
percentage interest in a pool of receivables, and the Purchasers desire to
acquire such undivided variable percentage interest, as such percentage interest
shall be adjusted from time to time based upon, in part, reinvestment payments
that are made by the Purchasers.
This Agreement amends and restates in its entirety, as of the Closing Date,
the Receivables Purchase Agreement, dated as of February 20, 2002 (as amended,
restated, supplemented or otherwise modified prior to the date hereof, the
"Original Agreement"), among the Seller, the Servicer, the Sub-Servicers, the
Issuer and the Administrator. Notwithstanding the amendment and restatement of
the Original Agreement by this Agreement, (i) the Seller and Servicer shall
continue to be liable to PNC, the Issuer or any other Indemnified Party or
Affected Person (as such terms are defined in the Original Agreement) for fees
and expenses which are accrued and unpaid under the Original Agreement on the
date hereof (collectively, the "Original Agreement Outstanding Amounts") and all
agreements to indemnify such parties in connection with events or conditions
arising or existing prior to the effective date of this Agreement and (ii) the
security interest created under the Original Agreement shall remain in full
force and effect as security for such Original Agreement Outstanding Amounts
until such Original Agreement
Outstanding Amounts shall have been paid in full. Upon the effectiveness of this
Agreement, each reference to the Original Agreement in any other document,
instrument or agreement shall mean and be a reference to this Agreement. Nothing
contained herein, unless expressly herein stated to the contrary, is intended to
amend, modify or otherwise affect any other instrument, document or agreement
executed and/or delivered in connection with the Original Agreement.
In consideration of the mutual agreements, provisions and covenants
contained herein, the parties hereto agree as follows:
ARTICLE I.
AMOUNTS AND TERMS OF THE PURCHASES
Section 1.1 Purchase Facility.
(a) On the terms and conditions hereinafter set forth, the Issuer hereby
agrees to purchase, and make reinvestments in and, if so requested in accordance
with and subject to the terms of this Agreement, the LC Bank hereby agrees to
issue Letters of Credit in return for (and each LC Participant hereby severally
agrees to make participation advances in connection with any draws under such
Letters of Credit equal to such LC Participant's Pro Rata Share thereof),
undivided variable percentage ownership interests with regard to the Purchased
Interest from the Seller from time to time from the date hereof to the Facility
Termination Date.
The Seller may, subject to the remainder of this paragraph (a) and the
other requirements and conditions herein, use the proceeds of any purchase or
reinvestment by the Issuer, hereunder, to satisfy its Reimbursement Obligation
to the LC Bank and the LC Participants (ratably, based on the outstanding
amounts funded by the LC Bank and each such LC Participant) pursuant to Section
1.14 below.
In addition, in the event the Seller fails to reimburse the LC Bank and
each applicable LC Participant for the full amount of any drawing under any
Letter of Credit on the applicable Drawing Date (out of its own funds available
therefor, or otherwise, at such time), pursuant to Section 1.14, then the Seller
shall, automatically (and without the requirement of any further action on the
part of any Person hereunder), be deemed to have requested a new purchase from
the Issuer on such date, pursuant to the terms hereof, in an amount equal to the
amount of such Reimbursement Obligation at such time. Subject to the limitations
on funding set forth in the remainder of this paragraph (a), below (and
otherwise herein), the Issuer shall fund such deemed purchase request and
deliver the proceeds thereof directly to the Administrator to be immediately
distributed (ratably) to the LC Bank and the applicable LC Participants in
satisfaction of the Seller's Reimbursement Obligation pursuant to Section 1.14,
below, to the extent of the amounts permitted to be funded by the Issuer, at
such time, hereunder.
Notwithstanding anything set forth in this paragraph (a), or otherwise
herein to the contrary, under no circumstances shall any Purchaser make any such
purchase or reinvestment (including, without limitation, any deemed purchases by
the Issuer pursuant to the immediately preceding paragraphs of this Section
1.1(a)), or issue any Letter of Credit, as applicable, if, after giving effect
to such purchase, reinvestment or issuance, the (i) aggregate outstanding amount
of
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the Capital funded by such Purchaser shall exceed (A) the Commitment set forth
opposite its name on the signature page hereto, as the same may be reduced from
time to time pursuant to Section 1.1(b), minus (B) in the case of any LC
Participant such LC Participant's Pro Rata Share of the face amount of any
outstanding Letters of Credit or (ii) the aggregate outstanding Capital plus the
LC Participation Amount would exceed the Purchase Limit.
(b) The Seller may, upon at least 30 days' written notice to the
Administrator, terminate the purchase facility provided in this Section in whole
or, upon at least 10 Business Days' written notice, from time to time,
irrevocably reduce in part the unused portion of the Purchase Limit; provided,
that each partial reduction shall be in the amount of at least $5,000,000, or an
integral multiple of $1,000,000 in excess thereof, and that, unless terminated
in whole, the Purchase Limit shall in no event be reduced below $50,000,000.
Each reduction in the Commitments hereunder shall be made ratably among the LC
Participants in accordance with their respective Pro Rata Shares. The
Administrator shall promptly advise the Purchasers of any notice pursuant to
this Section 1.1(b); it being understood that (in addition to and without
limiting any other requirements for termination, prepayment and/or the funding
of the LC Collateral Account hereunder) no such termination or reduction shall
be effective unless and until (i) in the case of a termination, the amount on
deposit in the LC Collateral Account is at least equal to the then outstanding
LC Participation Amount and (ii) in the case of a partial reduction, the amount
on deposit in the LC Collateral Account is at least equal to the difference
between the then outstanding LC Participation Amount and the Purchase Limit as
so reduced by such partial reduction.
Section 1.2 Making Purchases.
(a) Each Funded Purchase (but not reinvestment) of undivided percentage
ownership interests with regard to the Purchased Interest hereunder shall be
made upon the Seller's irrevocable written notice in the form of Annex B (the
"Purchase Notice") delivered to the Administrator in accordance with Section 5.2
(which notice must be received by the Administrator before 11:00 a.m., New York
City time) at least two Business Days before the requested purchase date, which
notice shall specify: (A) the amount requested to be paid to the Seller (such
amount, which shall not be less than $300,000 and shall be in integral multiples
of $100,000, being the Capital relating to the undivided percentage ownership
interest then being purchased), (B) the date of such Funded Purchase (which
shall be a Business Day), and (C) the pro forma calculation of the Purchased
Interest after giving effect to the increase in Capital.
(b) On the date of each Funded Purchase (but not reinvestment) of undivided
percentage ownership interests with regard to the Purchased Interest hereunder,
the Issuer shall, upon satisfaction of the applicable conditions set forth in
Exhibit II, make available to the Seller in same day funds, at Wachovia Bank,
N.A., account number 2000014815108, ABA No. 000000000, an amount equal to the
Capital relating to the undivided percentage ownership interest then being
purchased.
(c) Effective on the date of each Funded Purchase pursuant to this Section
and each reinvestment pursuant to Section 1.4, the Seller hereby sells and
assigns to the Administrator for the benefit of the Purchasers (ratably based on
the sum of the Capital plus the LC Participation
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Amount outstanding at such time) an undivided percentage ownership interest in:
(i) each Pool Receivable then existing, (ii) all Related Security with respect
to such Pool Receivables, and (iii) all Collections with respect to, and other
proceeds of, such Pool Receivables and Related Security.
(d) To secure all of the Seller's obligations (monetary or otherwise) under
this Agreement and the other Transaction Documents to which it is a party,
whether now or hereafter existing or arising, due or to become due, direct or
indirect, absolute or contingent, the Seller hereby grants to the Administrator
(for the benefit of the Purchasers and their assigns) a security interest in all
of the Seller's right, title and interest (including any undivided interest of
the Seller) in, to and under all of the following, whether now or hereafter
owned, existing or arising: (i) all Pool Receivables, (ii) all Related Security
with respect to such Pool Receivables, (iii) all Collections with respect to
such Pool Receivables, (iv) the Lock-Box Accounts and all amounts on deposit
therein, and all certificates and instruments, if any, from time to time
evidencing such Lock-Box Accounts and amounts on deposit therein, (v) all rights
(but none of the obligations) of the Seller under the Sale Agreement and the
Contribution Agreement, (vi) the Servicer Note, and (vii) all proceeds of, and
all amounts received or receivable under any or all of, the foregoing
(collectively, the "Pool Assets"). The Administrator (on behalf of the
Purchasers and their assigns) shall have, with respect to the Pool Assets, and
in addition to all the other rights and remedies available to the Administrator,
all the rights and remedies of a secured party under any applicable UCC.
(e) Whenever the LC Bank issues a Letter of Credit pursuant to Section 1.12
hereof, each LC Participant shall, automatically and without further action of
any kind upon the effective date of issuance of such Letter of Credit, have
irrevocably deemed to make a Funded Purchase hereunder in the event that such
Letter of Credit is subsequently drawn and such drawn amount shall not have been
reimbursed pursuant to Section 1.14 upon such draw. All such Funded Purchases
shall comprise Base Rate Portions of Capital in an amount equal to the amount of
such draw (without regard to the numerical requirements set forth in Section
1.2(a)), shall be made ratably by the LC Participants according to their Pro
Rata Shares and shall accrue Discount. In the event that any Letter of Credit
expires or is surrendered without being drawn (in whole or in part) then, in
such event, the foregoing commitment to make Funded Purchases shall expire with
respect to such Letter of Credit and the LC Participation Amount shall
automatically reduce by the amount of the Letter of Credit which is no longer
outstanding.
Section 1.3 Purchased Interest Computation.
The Purchased Interest shall be initially computed on the date of the
initial purchase hereunder. Thereafter, until the Facility Termination Date, the
Purchased Interest shall be automatically recomputed (or deemed to be
recomputed) on each Business Day other than a Termination Day. The Purchased
Interest as computed (or deemed recomputed) as of the day before the Facility
Termination Date shall thereafter remain constant. The Purchased Interest shall
become zero when the Capital thereof and Discount thereon shall have been paid
in full, the LC Participation Amount has been cash collateralized in full, all
the amounts owed by the Seller and the Servicer hereunder to the Issuer, the LC
Bank, the LC Participants, the Administrator and
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any other Indemnified Party or Affected Person are paid in full, and the
Servicer shall have received the accrued Servicing Fee thereon.
Section 1.4 Settlement Procedures.
(a) The collection of the Pool Receivables shall be administered by the
Servicer in accordance with this Agreement. The Seller shall provide to the
Servicer on a timely basis all information needed for such administration,
including notice of the occurrence of any Termination Day and current
computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool
Receivables are received (or deemed received) by the Seller or the Servicer:
(i) set aside and hold in trust (and shall, at the request of the
Administrator, segregate in a separate account approved by the Administrator)
for the Administrator (for the benefit of the Purchasers), out of the percentage
of Collections represented by the Purchased Interest, first, an amount equal to
the Discount accrued through such day for each Portion of Capital and not
previously set aside, second, an amount equal to the fees set forth in the Fee
Letter accrued and unpaid through such day, and third, to the extent funds are
available therefor, an amount equal to the Purchasers' Share of the Servicing
Fee accrued through such day and not previously set aside,
(ii) subject to Section 1.4(f), if such day is not a Termination
Day, remit to the Seller, on behalf of the Purchasers, the remainder of the
percentage of Collections represented by the Purchased Interest (to the extent
representing a return on Capital); such remainder shall be automatically
reinvested in Pool Receivables, and in the Related Security, Collections and
other proceeds with respect thereto; provided, however, that if the Purchased
Interest would exceed 100%, then the Servicer shall not remit such remainder to
the Seller, but shall set aside and hold in trust for the ratable benefit of the
Purchasers (and shall, at the request of the Administrator, segregate in a
separate account approved by the Administrator) a portion of such Collections
that, together with the other Collections set aside pursuant to this paragraph,
shall equal the amount necessary to reduce the Purchased Interest to 100%,
(iii) if such day is a Termination Day, set aside, segregate and
hold in trust for the benefit of the Purchasers (and shall, at the request of
the Administrator, segregate in a separate account approved by the
Administrator) the entire remainder of the Purchasers' Share of the Collections;
provided, that if amounts are set aside and held in trust on any Termination Day
of the type described in clause (a) of the definition of "Termination Day" and,
thereafter, the conditions set forth in Section 2 of Exhibit II are satisfied or
waived by the Administrator, such previously set-aside amounts shall, to the
extent representing a return on Capital, be reinvested in accordance with clause
(ii) on the day of such subsequent satisfaction or waiver of conditions, and
(iv) release to the Seller (subject to Section 1.4(f)) for its
own account any Collections in excess of: (w) amounts required to be reinvested
in accordance with clause (ii) or the proviso to clause (iii) plus (x) the
amounts that are required to be set aside pursuant to
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clause (i), the proviso to clause (ii) and clause (iii) plus (y) the Seller's
Share of the Servicing Fee accrued and unpaid through such day and all
reasonable and appropriate out-of-pocket costs and expenses of the Servicer for
servicing, collecting and administering the Pool Receivables plus (z) all other
amounts owed by the Seller under this Agreement to the Issuer, the LC Bank, any
LC Participant, the Administrator, and any other Indemnified Party or Affected
Person.
(c) The Servicer shall deposit into the Administration Account (or such
other account designated by the Administrator), on each Settlement Date,
Collections held for the Purchasers pursuant to clause (b)(i) or (f) plus the
amount of Collections then held for the Purchasers pursuant to clauses (b)(ii)
and (iii) of Section 1.4; provided, that if Peabody or an Affiliate thereof is
the Servicer, such day is not a Termination Day and the Administrator has not
notified Peabody (or such Affiliate) that such right is revoked, Peabody (or
such Affiliate) may retain the portion of the Collections set aside pursuant to
clause (b)(i) that represents the Purchasers' Share of the Servicing Fee. On the
last day of each Settlement Period, the Administrator will notify the Servicer
by facsimile of the amount of Discount accrued with respect to each Portion of
Capital during such Settlement Period or portion thereof.
(d) Upon receipt of funds deposited into the Administration Account
pursuant to clause (c), the Administrator shall cause such funds to be
distributed as follows:
(i) if such distribution occurs on a day that is not a
Termination Day and the Purchased Interest does not exceed 100%, first to the
Purchasers ratably (based on their respective Portions of Capital funded
thereby) in payment in full of all accrued Discount and fees (other than
Servicing Fees) with respect to each Portion of Capital, and second, if the
Servicer has set aside amounts in respect of the Servicing Fee pursuant to
clause (b)(i) and has not retained such amounts pursuant to clause (c), to the
Servicer (payable in arrears on each Settlement Date) in payment in full of the
Purchasers' Share of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day
when the Purchased Interest exceeds 100%, first to the Purchasers ratably (based
on their respective Portions of Capital funded thereby) in payment in full of
all accrued Discount with respect to each Portion of Capital, second to the
Purchasers ratably (based on their respective Portions of Capital funded
thereby) in payment in full of Capital (or, if such day is not a Termination
Day, the amount necessary to reduce the Purchased Interest to 100%), third, to
the LC Collateral Account for the benefit of the LC Bank and the LC
Participants, the amount necessary to cash collateralize the LC Participation
Amount until the amount of cash collateral held in such LC Collateral Account
equals the aggregate outstanding amount of the LC Participation Amount, fourth,
to the Servicer in payment in full of all accrued Servicing Fees, and fifth, if
the Capital and accrued Discount with respect to each Portion of Capital have
been reduced to zero, and all accrued Servicing Fees payable to the Servicer
have been paid in full, to the Purchasers ratably (based on their respective
Portions of Capital funded thereby), the Administrator and any other Indemnified
Party or Affected Person in payment in full of any other amounts owed thereto by
the Seller hereunder.
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After the Capital, Discount, fees payable pursuant to the Fee Letter and
Servicing Fees with respect to the Purchased Interest, and any other amounts
payable by the Seller and the Servicer to the Purchasers, the Administrator or
any other Indemnified Party or Affected Person hereunder, have been paid in
full, and (on and after a Termination Day) after the LC Participation Amount has
been cash collateralized in full, all additional Collections with respect to the
Purchased Interest shall be paid to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable
is reduced or adjusted as a result of any defective, rejected, returned,
repossessed or foreclosed goods or services, or any revision, cancellation,
allowance, rebate, discount or other adjustment made by the Seller or any
Affiliate of the Seller, or any setoff or dispute between the Seller or any
Affiliate of the Seller and an Obligor, the Seller shall be deemed to have
received on such day a Collection of such Pool Receivable in the amount of such
reduction or adjustment;
(ii) if on any day any of the representations or warranties in
Section l(g) or (n) of Exhibit III is not true with respect to any Pool
Receivable, the Seller shall be deemed to have received on such day a Collection
of such Pool Receivable in full;
(iii) except as provided in clause (i) or (ii), or as otherwise
required by applicable law or the relevant Contract, all Collections received
from an Obligor of any Receivable shall be applied to the Receivables of such
Obligor in the order of the age of such Receivables, starting with the oldest
such Receivable, unless such Obligor designates in writing its payment for
application to specific Receivables; and
(iv) if and to the extent the Administrator or any Purchaser
shall be required for any reason to pay over to an Obligor (or any trustee,
receiver, custodian or similar official in any Insolvency Proceeding) any amount
received by it hereunder, such amount shall be deemed not to have been so
received by the Administrator or such Purchaser but rather to have been retained
by the Seller and, accordingly, the Administrator or such Purchaser, as the case
may be, shall have a claim against the Seller for such amount, payable when and
to the extent that any distribution from or on behalf of such Obligor is made in
respect thereof
(f) If at any time the Seller shall wish to cause the reduction of Capital
(but not to commence the liquidation, or reduction to zero, of the entire
Capital of the Purchased Interest), the Seller may do so as follows:
(i) the Seller shall give the Administrator and the Servicer
written notice in the form of Annex C (the "Paydown Notice") (A) at least two
Business Days' prior to the date of such reduction for any reduction of Capital
less than or equal to $20,000,000 and (B) at least five Business Days' prior to
the date of such reduction for any reduction of Capital greater than
$20,000,000, in each case such notice shall include the amount of such reduction
and the proposed date on which such reduction shall commence;
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(ii) on the proposed date of the commencement of such reduction
and on each day thereafter, the Servicer shall cause Collections not to be
reinvested until the amount thereof not so reinvested shall equal the desired
amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the
Purchaser, for payment to the Administrator on the next Settlement Date
immediately following the current Settlement Period or such other date approved
by the Administrator, and Capital shall be deemed reduced in the amount to be
paid to the Administrator only when in fact finally so paid; provided, that the
amount of any such reduction shall be not less than $300,000 and shall be an
integral multiple of $100,000.
Section 1.5 Fees.
The Seller shall pay to the Administrator for the benefit of the
Issuer, the LC Bank and each LC Participant, certain fees in the amounts and on
the dates set forth in that certain amended and restated fee letter agreement,
dated the date hereof, among Peabody, the Seller and the Administrator (as such
letter agreement may be amended, supplemented or otherwise modified from time to
time, the "Fee Letter").
Section 1.6 Payments and Computations, Etc.
(a) All amounts to be paid or deposited by the Seller or the Servicer
hereunder shall be made without reduction for offset or counterclaim and shall
be paid or deposited no later than noon (New York City time) on the day when due
in same day funds to the Administration Account. All amounts received after noon
(New York City time) will be deemed to have been received on the next Business
Day.
(b) The Seller or the Servicer, as the case may be, shall, to the extent
permitted by law, pay interest on any amount not paid or deposited by the Seller
or the Servicer, as the case may be, when due hereunder, at an interest rate
equal to 2.0% per annum above the Base Rate, payable on demand.
(c) All computations of interest under clause (b) and all computations of
Discount, fees and other amounts hereunder shall be made on the basis of a year
of 360 (or 365 or 366, as applicable, with respect to Discount or other amounts
calculated by reference to the Base Rate) days for the actual number of days
elapsed. Whenever any payment or deposit to be made hereunder shall be due on a
day other than a Business Day, such payment or deposit shall be made on the next
Business Day and such extension of time shall be included in the computation of
such payment or deposit.
Section 1.7 Increased Costs.
(a) If the Administrator, the LC Bank, the Issuer, any Purchaser, any
Liquidity Bank, any other Program Support Provider or any of their respective
Affiliates (each an "Affected Person") reasonably determines that the existence
of or compliance with: (i) any law or regulation or any change therein or in the
interpretation or application thereof, in each case
8
adopted, issued or occurring after the date hereof, or (ii) any request,
guideline or directive from any central bank or other Governmental Authority
(whether or not having the force of law) issued or occurring after the date of
this Agreement, affects or would affect the amount of capital required or
expected to be maintained by such Affected Person, and such Affected Person
determines that the amount of such capital is increased by or based upon the
existence of any commitment to make purchases of (or otherwise to maintain the
investment in) Pool Receivables or issue any Letter of Credit related to this
Agreement or any related liquidity facility, credit enhancement facility and
other commitments of the same type, then, upon demand by such Affected Person
(with a copy to the Administrator), the Seller shall promptly pay to the
Administrator, for the account of such Affected Person, from time to time as
specified by such Affected Person, additional amounts sufficient to compensate
such Affected Person in the light of such circumstances, to the extent that such
Affected Person reasonably determines such increase in capital to be allocable
to the existence of any of such commitments. A certificate as to such amounts
submitted to the Seller and the Administrator by such Affected Person shall be
conclusive and binding for all purposes, absent manifest error.
(b) If, due to either: (i) the introduction of or any change in or in the
interpretation of any law or regulation or (ii) compliance with any guideline or
request from any central bank or other Governmental Authority (whether or not
having the force of law), there shall be any increase in the cost to any
Affected Person of agreeing to purchase or purchasing, or maintaining the
ownership of, the Purchased Interest in respect of which Discount is computed by
reference to the Euro-Rate, then, upon demand by such Affected Person, the
Seller shall promptly pay to such Affected Person, from time to time as
specified by such Affected Person, additional amounts sufficient to compensate
such Affected Person for such increased costs. A certificate as to such amounts
submitted to the Seller and the Administrator by such Affected Person shall be
conclusive and binding for all purposes, absent manifest error.
(c) If such increased costs affect the related Affected Person's portfolio
of financing transactions, such Affected Person shall use reasonable averaging
and attribution methods to allocate such increased costs to the transactions
contemplated by this Agreement.
Section 1.8 Requirements of Law.
If any Affected Person reasonably determines that the existence of or
compliance with: (a) any law or regulation or any change therein or in the
interpretation or application thereof, in each case adopted, issued or occurring
after the date hereof, or (b) any request, guideline or directive from any
central bank or other Governmental Authority (whether or not having the force of
law) issued or occurring after the date of this Agreement:
(i) does or shall subject such Affected Person to any tax of any
kind whatsoever with respect to this Agreement, any increase in the Purchased
Interest or in the amount of Capital relating thereto, or does or shall change
the basis of taxation of payments to such Affected Person on account of
Collections, Discount or any other amounts payable hereunder (excluding taxes
imposed on the overall or branch pre-tax net income of such Affected Person, and
franchise taxes imposed on such Affected Person, by the jurisdiction under the
laws of which such Affected Person is organized or otherwise is considered doing
business (unless the
9
Affected Person would not be considered doing business in such jurisdiction, but
for having entered into, or engaged in the transactions in connection with, this
Agreement or any other Transaction Document) or a political subdivision
thereof),
(ii) does or shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets held by,
or deposits or other liabilities in or for the account of, purchases, advances
or loans by, or other credit extended by, or any other acquisition of funds by,
any office of such Affected Person that are not otherwise included in the
determination of the Euro-Rate or the Base Rate hereunder, or
(iii) does or shall impose on such Affected Person any other
condition, and the result of any of the foregoing is: (A) to increase the cost
to such Affected Person of agreeing to purchase or purchasing or maintaining the
ownership of undivided percentage ownership interests with regard to, or issuing
any Letter of Credit in respect of, the Purchased Interest (or interests
therein) or any Portion of Capital, or (B) to reduce any amount receivable
hereunder (whether directly or indirectly), then, in any such case, upon demand
by such Affected Person, the Seller shall promptly pay to such Affected Person
additional amounts necessary to compensate such Affected Person for such
additional cost or reduced amount receivable. All such amounts shall be payable
as incurred. A certificate from such Affected Person to the Seller and the
Administrator certifying, in reasonably specific detail, the basis for,
calculation of, and amount of such additional costs or reduced amount receivable
shall be conclusive and binding for all purposes, absent manifest error;
provided, however, that no Affected Person shall be required to disclose any
confidential or tax planning information in any such certificate.
Section 1.9 Inability to Determine Euro-Rate.
(a) If the Administrator determines before the first day of any Settlement
Period (which determination shall be final and conclusive) that, by reason of
circumstances affecting the interbank eurodollar market generally, deposits in
dollars (in the relevant amounts for such Settlement Period) are not being
offered to banks in the interbank eurodollar market for such Settlement Period,
or adequate means do not exist for ascertaining the Euro-Rate for such
Settlement Period, then the Administrator shall give notice thereof to the
Seller. Thereafter, until the Administrator notifies the Seller that the
circumstances giving rise to such suspension no longer exist, (a) no Portion of
Capital shall be funded at the Alternate Rate determined by reference to the
Euro-Rate and (b) the Discount for any outstanding Portions of Capital then
funded at the Alternate Rate determined by reference to the Euro-Rate shall, on
the last day of the then current Settlement Period, be converted to the
Alternate Rate determined by reference to the Base Rate.
(b) If, on or before the first day of any Settlement Period, the
Administrator shall have been notified by any Affected Person that, such
Affected Person has determined (which determination shall be final and
conclusive) that, any enactment, promulgation or adoption of or any change in
any applicable law, rule or regulation, or any change in the interpretation or
administration thereof by a governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by such Affected Person with any guideline, request or directive (whether or not
having the force of law) of any such authority,
10
central bank or comparable agency shall make it unlawful or impossible for such
Affected Person to fund or maintain any Portion of Capital at the Alternate Rate
and based upon the Euro-Rate, the Administrator shall notify the Seller thereof.
Upon receipt of such notice, until the Administrator notifies the Seller that
the circumstances giving rise to such determination no longer apply, (a) no
Portion of Capital shall be funded at the Alternate Rate determined by reference
to the Euro-Rate and (b) the Discount for any outstanding Portions of Capital
then funded at the Alternate Rate determined by reference to the Euro-Rate shall
be converted to the Alternate Rate determined by reference to the Base Rate
either (i) on the last day of the then current Settlement Period if such
Affected Person may lawfully continue to maintain such Portion of Capital at the
Alternate Rate determined by reference to the Euro-Rate to such day, or (ii)
immediately, if such Affected Person may not lawfully continue to maintain such
Portion of Capital at the Alternate Rate determined by reference to the
Euro-Rate to such day.
Section 1.10 Extension of the Liquidity Termination Date and Scheduled
Commitment Termination Date.
Provided that no Termination Event or Unmatured Termination Event
exists and is continuing, Seller may request an extension of the Purchase
Termination Date under the Liquidity Agreement and the Scheduled Commitment
Termination Date hereunder (each such date, as used herein, respectively, the
"Liquidity Termination Date") by submitting a request for an extension (each, an
"Extension Request") to the Administrator no more than 210 days prior to the
Liquidity Termination Date then in effect. Each Extension Request must specify
the new Liquidity Termination Date requested by Seller and the date (which must
be at least 30 days after the Extension Request is delivered to the
Administrator) as of which the Administrator and the Liquidity Banks and/or LC
Participants, as applicable, must respond to the Extension Request (the
"Response Date"). The new Liquidity Termination Date shall, in any case, be no
more than 364 days after the Response Date, including the Response Date as one
of the days in the calculation of the days elapsed. Promptly upon receipt of an
Extension Request, the Administrator shall notify the Liquidity Banks and/or LC
Participants, as applicable, of the contents thereof and shall request each
Liquidity Bank and/or LC Participant, as applicable, to approve the Extension
Request. Each Liquidity Bank and/or LC Participant, as applicable, approving the
Extension Request shall deliver its written approval to the Administrator no
later than the Response Date (it being understood that the Liquidity Banks
and/or LC Participants, as applicable, may accept or decline such Extension
Request in their sole discretion and on such terms as they may elect), whereupon
the Administrator shall notify Seller within one (1) Business Day thereafter as
to whether all Liquidity Banks and/or LC Participants, as applicable, have
approved the Extension Request. In the event that all Liquidity Banks and/or LC
Participants, as applicable, shall approve such Extension Request, the Liquidity
Banks and/or LC Participants, as applicable, shall enter into such documents as
the Liquidity Banks and/or LC Participants, as applicable, may deem necessary or
appropriate to reflect such extension, all reasonable costs and expenses
incurred by the Liquidity Banks and/or LC Participants, as applicable, and the
Administrator in connection therewith (including reasonable Attorneys' Costs)
shall be paid by the Seller, the Administrator shall promptly notify the Seller
and the Liquidity Banks and/or LC Participants, as applicable, of the new
Liquidity Termination Date, and the Seller shall pay to the Administrator for
the account of each of the Liquidity Banks and/or LC Participants, as
applicable, a fully-earned and non-refundable extension fee of $2,500.
11
In the event that the Liquidity Banks and/or LC Participants, as applicable,
decline the Extension Request, the Administrator shall so notify the Seller of
such determination; provided, however, that the failure of the Administrator to
so notify the Seller of the determination to decline any Extension Request shall
not affect the understanding and agreement that the Liquidity Banks and/or LC
Participants, as applicable, shall be deemed to have refused to grant such
Extension Request in the event that the Administrator fails to affirmatively
notify the Seller, in writing, of the approval of such Extension Request.
Section 1.11 Letters of Credit.
Subject to the terms and conditions hereof, the LC Bank shall issue or
cause the issuance of standby Letters of Credit ("Letters of Credit") on behalf
of Seller (and, if applicable, on behalf of, or for the account of, the Servicer
or any Sub-Servicer); provided, however, that the LC Bank will not be required
to issue or cause to be issued any Letters of Credit to the extent that the
issuance of such Letters of Credit would then cause the sum of (i) the
outstanding Capital plus (ii) the LC Participation Amount to exceed the Purchase
Limit. The LC Participation Amount shall not exceed in the aggregate, at any
time, the aggregate of the Commitments of the LC Bank and the LC Participants.
All amounts drawn upon Letters of Credit shall accrue Discount. Letters of
Credit that have not been drawn upon shall not accrue Discount.
Section 1.12 Issuance of Letters of Credit.
(a) The Seller may request the LC Bank, upon two (2) Business Days' prior
written notice submitted on or before 11:00 a.m., New York time, to issue a
Letter of Credit by delivering to the Administrator, the LC Bank's form of
Letter of Credit Application (the "Letter of Credit Application"), substantially
in the form of Annex E attached hereto completed to the satisfaction of the
Administrator and the LC Bank; and, such other certificates, documents and other
papers and information as the Administrator may reasonably request. The Seller
also has the right to give instructions and make agreements with respect to any
Letter of Credit Application and the disposition of documents, and to agree with
the Administrator upon any amendment, extension or renewal of any Letter of
Credit.
(b) Each Letter of Credit shall, among other things, (i) provide for the
payment of sight drafts or other written demands for payment when presented for
honor thereunder in accordance with the terms thereof and when accompanied by
the documents described therein and (ii) have an expiry date not later than
twelve (12) months after such Letter of Credit's date of issuance and in no
event later than the Facility Termination Date. Each Letter of Credit shall be
subject either to the Uniform Customs and Practice for Documentary Credits (1993
Revision), International Chamber of Commerce Publication No. 500, and any
amendments or revisions thereof adhered to by the LC Bank ("UCP 500") or the
International Standby Practices (ISP98-International Chamber of Commerce
Publication Number 590), and any amendments or revisions thereof adhered to by
the LC Bank (the "ISP98 Rules"), as determined by the LC Bank.
(c) The Administrator shall promptly notify the LC Bank , at its address
for notices hereunder, and each LC Participant of the request by the Seller for
a Letter of Credit hereunder,
12
and shall provide the LC Bank with the Letter of Credit Application delivered to
the Administrator by the Seller pursuant to paragraph (a), above, by the close
of business on the day received or if received on a day that is not a Business
Day or on any Business Day after 11:00 a.m. New York time on such day, on the
next Business Day.
Section 1.13 Requirements For Issuance of Letters of Credit.
The Seller shall authorize and direct the LC Bank to name the Seller as the
"Applicant" or "Account Party" of each Letter of Credit.
Section 1.14 Disbursements, Reimbursement.
(a) Immediately upon the issuance of each Letter of Credit, each LC
Participant shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the LC Bank a participation in such Letter of Credit
and each drawing thereunder in an amount equal to such LC Participant's Pro Rata
Share of the face amount of such Letter of Credit and the amount of such
drawing, respectively.
(b) In the event of any request for a drawing under a Letter of Credit by
the beneficiary or transferee thereof, the LC Bank will promptly notify the
Administrator and the Seller of such request. Provided that it shall have
received such notice, the Seller shall reimburse (such obligation to reimburse
the LC Bank shall sometimes be referred to as a "Reimbursement Obligation") the
LC Bank prior to 12:00 p.m., New York time on each date that an amount is paid
by the LC Bank under any Letter of Credit (each such date, a "Drawing Date") in
an amount equal to the amount so paid by the LC Bank. In the event the Seller
fails to reimburse the LC Bank for the full amount of any drawing under any
Letter of Credit by 12:00 p.m., New York time, on the Drawing Date, the LC Bank
will promptly notify each LC Participant thereof, and the Seller shall be deemed
to have requested that a Funded Purchase be made by the LC Bank and the LC
Participants to be disbursed on the Drawing Date under such Letter of Credit,
subject to the amount of the unutilized portion of the Purchase Limit. Any
notice given by the LC Bank pursuant to this Section may be oral if immediately
confirmed in writing; provided that the lack of such an immediate confirmation
shall not affect the conclusiveness or binding effect of such notice.
(c) Each LC Participant shall upon any notice pursuant to subclause (b)
above make available to the LC Bank an amount in immediately available funds
equal to its Pro Rata Share of the amount of the drawing, whereupon the LC
Participants shall each be deemed to have made a Funded Purchase in that amount.
If any LC Participant so notified fails to make available to the LC Bank the
amount of such LC Participant's Pro Rata Share of such amount by no later than
2:00 p.m., New York time on the Drawing Date, then interest shall accrue on such
LC Participant's obligation to make such payment, from the Drawing Date to the
date on which such LC Participant makes such payment (i) at a rate per annum
equal to the Federal Funds Rate during the first three days following the
Drawing Date and (ii) at a rate per annum equal to the rate applicable to
Capital on and after the fourth day following the Drawing Date. The LC Bank will
promptly give notice of the occurrence of the Drawing Date, but failure of the
LC Bank to give any such notice on the Drawing Date or in sufficient time to
enable any LC Participant to
13
effect such payment on such date shall not relieve such LC Participant from its
obligation under this subclause (c), provided that such LC Participant shall not
be obligated to pay interest as provided in this subclauses (i) and (ii) above
until and commencing from the date of receipt of notice from the LC Bank or the
Administrator of a drawing. Each LC Participant's Commitment shall continue
until the last to occur of any of the following events: (A) the LC Bank ceases
to be obligated to issue or cause to be issued Letters of Credit hereunder; (B)
no Letter of Credit issued hereunder remains outstanding and uncancelled or (C)
all Persons (other than the Seller) have been fully reimbursed for all payments
made under or relating to Letters of Credit.
Section 1.15 Repayment of Participation Advances.
(a) Upon (and only upon) receipt by the LC Bank for its account of
immediately available funds from the Seller (i) in reimbursement of any payment
made by the LC Bank under a Letter of Credit with respect to which any LC
Participant has made a participation advance to the LC Bank, or (ii) in payment
of Discount on the Funded Purchases made or deemed to have been made in
connection with any such draw, the LC Bank will pay to each LC Participant,
ratably (based on the outstanding drawn amounts funded by each such LC
Participant in respect of such Letter of Credit), in the same funds as those
received by the LC Bank; it being understood, that the LC Bank shall retain a
ratable amount of such funds that were not the subject of any payment in respect
of such Letter of Credit by any LC Participant.
(b) If the LC Bank is required at any time to return to the Seller, or to a
trustee, receiver, liquidator, custodian, or any official in any insolvency
proceeding, any portion of the payments made by the Seller to the LC Bank
pursuant to this Agreement in reimbursement of a payment made under the Letter
of Credit or interest or fee thereon, each LC Participant shall, on demand of
the LC Bank, forthwith return to the LC Bank the amount of its Pro Rata Share of
any amounts so returned by the LC Bank plus interest at the Federal Funds Rate.
Section 1.16 Documentation.
The Seller agrees to be bound by the terms of the Letter of Credit
Application and by the LC Bank's interpretations of any Letter of Credit issued
for the Seller and by the LC Bank's written regulations and customary practices
relating to letters of credit, though the LC Bank's interpretation of such
regulations and practices may be different from the Seller's own. In the event
of a conflict between the Letter of Credit Application and this Agreement, this
Agreement shall govern. It is understood and agreed that, except in the case of
gross negligence or willful misconduct by the LC Bank, the LC Bank shall not be
liable for any error, negligence and/or mistakes, whether of omission or
commission, in following the Seller's instructions or those contained in the
Letters of Credit or any modifications, amendments or supplements thereto.
Section 1.17 Determination to Honor Drawing Request.
In determining whether to honor any request for drawing under any
Letter of Credit by the beneficiary thereof, the LC Bank shall be responsible
only to determine that the
14
documents and certificates required to be delivered under such Letter of Credit
have been delivered and that they comply on their face with the requirements of
such Letter of Credit and that any other drawing condition appearing on the face
of such Letter of Credit has been satisfied in the manner so set forth.
Section 1.18 Nature of Participation and Reimbursement Obligations.
Each LC Participant's obligation in accordance with this Agreement to
make participation advances as a result of a drawing under a Letter of Credit,
and the obligations of the Seller to reimburse the LC Bank upon a draw under a
Letter of Credit, shall be absolute, unconditional and irrevocable, and shall be
performed strictly in accordance with the terms of this Article I under all
circumstances, including the following circumstances:
(i) any set-off, counterclaim, recoupment, defense or other right
which such LC Participant may have against the LC Bank, the Administrator, the
Issuer, the Seller or any other Person for any reason whatsoever;
(ii) the failure of the Seller or any other Person to comply with
the conditions set forth in this Agreement for the making of a purchase,
reinvestments, requests for Letters of Credit or otherwise, it being
acknowledged that such conditions are not required for the making of
participation advances hereunder;
(iii) any lack of validity or enforceability of any Letter of
Credit;
(iv) any claim of breach of warranty that might be made by the
Seller, the LC Bank or any LC Participant against the beneficiary of a Letter of
Credit, or the existence of any claim, set-off, defense or other right which the
Seller, the LC Bank or any LC Participant may have at any time against a
beneficiary, any successor beneficiary or any transferee of any Letter of Credit
or the proceeds thereof (or any Persons for whom any such transferee may be
acting), the LC Bank, any LC Participant, the Issuer or any other Person,
whether in connection with this Agreement, the transactions contemplated herein
or any unrelated transaction (including any underlying transaction between the
Seller or any Subsidiaries of the Seller or any Affiliates of the Seller and the
beneficiary for which any Letter of Credit was procured);
(v) the lack of power or authority of any signer of, or lack of
validity, sufficiency, accuracy, enforceability or genuineness of, any draft,
demand, instrument, certificate or other document presented under any Letter of
Credit, or any such draft, demand, instrument, certificate or other document
proving to be forged, fraudulent, invalid, defective or insufficient in any
respect or any statement therein being untrue or inaccurate in any respect, even
if the Administrator or the LC Bank has been notified thereof;
(vi) payment by the LC Bank under any Letter of Credit against
presentation of a demand, draft or certificate or other document which does not
comply with the terms of such Letter of Credit other than as a result of the
gross negligence or willful misconduct of the LC Bank;
15
(vii) the solvency of, or any acts or omissions by, any
beneficiary of any Letter of Credit, or any other Person having a role in any
transaction or obligation relating to a Letter of Credit, or the existence,
nature, quality, quantity, condition, value or other characteristic of any
property or services relating to a Letter of Credit;
(viii) any failure by the LC Bank or any of the LC Bank's
Affiliates to issue any Letter of Credit in the form requested by the Seller,
unless the LC Bank has received written notice from the Seller of such failure
within three Business Days after the LC Bank shall have furnished the Seller a
copy of such Letter of Credit and such error is material and no drawing has been
made thereon prior to receipt of such notice;
(ix) any Material Adverse Effect on the Seller, any Originator or
any Affiliates thereof;
(x) any breach of this Agreement or any Transaction Document by
any party thereto;
(xi) the occurrence or continuance of an Insolvency Proceeding
with respect to the Seller, any Originator or any Affiliate thereof;
(xii) the fact that a Termination Event or an Unmatured
Termination Event shall have occurred and be continuing;
(xiii) the fact that this Agreement or the obligations of Seller
or Servicer hereunder shall have been terminated; and
(xiv) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing.
Nothing in this Section 1.18 shall relieve the LC Bank from liability for
its gross negligence or willful misconduct, as determined by a final
non-appealable judgment of a court of competent jurisdiction.
Section 1.19 Indemnity.
In addition to other amounts payable hereunder, the Seller hereby
agrees to protect, indemnify, pay and save harmless the Administrator, the LC
Bank, each LC Participant and any of the LC Bank's Affiliates that have issued a
Letter of Credit from and against any and all claims, demands, liabilities,
damages, taxes, penalties, interest, judgments, losses, costs, charges and
expenses (including Attorney Costs) which the Administrator, the LC Bank, any LC
Participant or any of their respective Affiliates may incur or be subject to as
a consequence, direct or indirect, of the issuance of any Letter of Credit,
other than as a result of (a) the gross negligence or willful misconduct of the
party to be indemnified as determined by a final judgment of a court of
competent jurisdiction or (b) the wrongful dishonor by the LC Bank of a proper
demand for payment made under any Letter of Credit, except if such dishonor
resulted from any act or omission, whether rightful or wrongful, of any present
or future de
16
jure or de facto Governmental Authority (all such acts or omissions herein
called "Governmental Acts").
Section 1.20 Liability for Acts and Omissions.
As between the Seller, on the one hand, and the Administrator, the LC
Bank, the LC Participants and the Issuer, on the other, the Seller assumes all
risks of the acts and omissions of, or misuse of the Letters of Credit by, the
respective beneficiaries of such Letters of Credit. In furtherance and not in
limitation of the respective foregoing, none of the Administrator, the LC Bank,
the LC Participants or the Issuer shall be responsible for: (i) the form,
validity, sufficiency, accuracy, genuineness or legal effect of any document
submitted by any party in connection with the application for an issuance of any
such Letter of Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC
Bank shall have been notified thereof); (ii) the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign any
such Letter of Credit or the rights or benefits thereunder or proceeds thereof,
in whole or in part, which may prove to be invalid or ineffective for any
reason; (iii) the failure of the beneficiary of any such Letter of Credit, or
any other party to which such Letter of Credit may be transferred, to comply
fully with any conditions required in order to draw upon such Letter of Credit
or any other claim of the Seller against any beneficiary of such Letter of
Credit, or any such transferee, or any dispute between or among the Seller and
any beneficiary of any Letter of Credit or any such transferee; (iv) errors,
omissions, interruptions or delays in transmission or delivery of any messages,
by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms; (vi) any loss or delay in the
transmission or otherwise of any document required in order to make a drawing
under any such Letter of Credit or of the proceeds thereof; (vii) the
misapplication by the beneficiary of any such Letter of Credit of the proceeds
of any drawing under such Letter of Credit; or (viii) any consequences arising
from causes beyond the control of the Administrator, the LC Bank, the LC
Participants and the Issuer, including any Governmental Acts, and none of the
above shall affect or impair, or prevent the vesting of, any of the LC Bank's
rights or powers hereunder. Nothing in the preceding sentence shall relieve the
LC Bank from liability for its gross negligence or willful misconduct, as
determined by a final non-appealable judgment of a court of competent
jurisdiction, in connection with actions or omissions described in such clauses
(i) through (viii) of such sentence. In no event shall the Administrator, the LC
Bank, the LC Participants, the Issuer or their respective Affiliates, be liable
to the Seller or any other Person for any indirect, consequential, incidental,
punitive, exemplary or special damages or expenses (including without limitation
attorneys' fees), or for any damages resulting from any change in the value of
any property relating to a Letter of Credit.
Without limiting the generality of the foregoing, the Administrator,
the LC Bank, the LC Participants and the Issuer and each of its Affiliates (i)
may rely on any written communication believed in good faith by such Person to
have been authorized or given by or on behalf of the applicant for a Letter of
Credit; (ii) may honor any presentation if the documents presented appear on
their face to comply with the terms and conditions of the relevant Letter of
Credit; (iii) may honor a previously dishonored presentation under a Letter of
Credit, whether such dishonor was pursuant to a court order, to settle or
compromise any
17
claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement
to the same extent as if such presentation had initially been honored, together
with any interest paid by the LC Bank or its Affiliates; (iv) may honor any
drawing that is payable upon presentation of a statement advising negotiation or
payment, upon receipt of such statement (even if such statement indicates that a
draft or other document is being delivered separately), and shall not be liable
for any failure of any such draft or other document to arrive, or to conform in
any way with the relevant Letter of Credit; (v) may pay any paying or
negotiating bank claiming that it rightfully honored under the laws or practices
of the place where such bank is located; and (vi) may settle or adjust any claim
or demand made on the Administrator, the LC Bank, the LC Participants, the
Issuer or their respective Affiliates, in any way related to any order issued at
the applicant's request to an air carrier, a letter of guarantee or of indemnity
issued to a carrier or any similar document (each an "Order") and honor any
drawing in connection with any Letter of Credit that is the subject of such
Order, notwithstanding that any drafts or other documents presented in
connection with such Letter of Credit fail to conform in any way with such
Letter of Credit.
In furtherance and extension and not in limitation of the specific
provisions set forth above, any action taken or omitted by the LC Bank under or
in connection with the Letters of Credit issued by it or any documents and
certificates delivered thereunder, if taken or omitted in good faith and without
gross negligence or willful misconduct, as determined by a final non-appealable
judgment of a court of competent jurisdiction, shall not put the LC Bank under
any resulting liability to the Seller, any LC Participant or any other Person.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES; COVENANTS; TERMINATION EVENTS
Section 2.1 Representations and Warranties; Covenants.
Each of the Seller, Peabody and the Servicer hereby makes the
representations and warranties, and hereby agrees to perform and observe the
covenants, applicable to it set forth in Exhibits III and IV, respectively.
Section 2.2 Termination Events.
If any of the Termination Events set forth in Exhibit V shall occur,
the Administrator may, by notice to the Seller, declare the Facility Termination
Date to have occurred (in which case the Facility Termination Date shall be
deemed to have occurred); provided, that automatically upon the occurrence of
any event (without any requirement for the passage of time or the giving of
notice) described in paragraph (f) of Exhibit V, the Facility Termination Date
shall occur. Upon any such declaration, occurrence or deemed occurrence of the
Facility Termination Date, the Purchasers and the Administrator shall have, in
addition to the rights and remedies that they may have under this Agreement, all
other rights and remedies provided after default under the Illinois UCC and
under other applicable law, which rights and remedies shall be cumulative.
18
ARTICLE III
INDEMNIFICATION
Section 3.1 Indemnities by the Seller.
Without limiting any other rights that the Administrator, the
Purchasers, the Liquidity Banks, any Program Support Provider or any of their
respective Affiliates, employees, officers, directors, agents, counsel,
successors, transferees or permitted assigns (each, an "Indemnified Party") may
have hereunder or under applicable law, the Seller hereby agrees to indemnify
each Indemnified Party from and against any and all claims, damages, expenses,
costs, losses and liabilities (including Attorney Costs) (all of the foregoing
being collectively referred to as "Indemnified Amounts") arising out of or
resulting from this Agreement (whether directly or indirectly), the use of
proceeds of purchases or reinvestments, the ownership of the Purchased Interest,
or any interest therein, or in respect of any Receivable, Related Security or
Contract, excluding, however: (a) Indemnified Amounts to the extent resulting
from gross negligence or willful misconduct on the part of such Indemnified
Party or its officers, directors, agents, counsel, successors, transferees or
permitted assigns, (b) any indemnification which has the effect of recourse for
the non-payment of the Receivables to any indemnitor (except as otherwise
specifically provided under Section 1.4 (e) and this Section 3.1), or (c)
overall net income taxes or franchise taxes imposed on such Indemnified Party by
the jurisdiction under the laws of which such Indemnified Party is organized or
any political subdivision thereof. Without limiting or being limited by the
foregoing, and subject to the exclusions set forth in the preceding sentence,
the Seller shall pay on demand (which demand shall be accompanied by
documentation of the Indemnified Amounts, in reasonable detail) to each
Indemnified Party any and all amounts necessary to indemnify such Indemnified
Party from and against any and all Indemnified Amounts relating to or resulting
from any of the following:
(i) the failure of any Receivable included in the calculation of
the Net Receivables Pool Balance as an Eligible Receivable to be an Eligible
Receivable, the failure of any information contained in an Information Package
to be true and correct, or the failure of any other information provided to any
Purchaser or the Administrator with respect to Receivables or this Agreement to
be true and correct,
(ii) the failure of any representation, warranty or statement
made or deemed made by the Seller (or any of its officers) under or in
connection with this Agreement to have been true and correct as of the date made
or deemed made in all respects when made,
(iii) the failure by the Seller to comply with any applicable
law, rule or regulation with respect to any Pool Receivable or the related
Contract, or the failure of any Pool Receivable or the related Contract to
conform to any such applicable law, rule or regulation,
(iv) the failure to vest in the Administrator (on behalf of the
Purchasers) a valid and enforceable: (A) perfected undivided percentage
ownership interest, to the extent of the Purchased Interest, in the Receivables
in, or purporting to be in, the Receivables Pool and the other Pool Assets, or
(B) first priority perfected security interest in the Pool Assets, in each case,
free and clear of any Adverse Claim,
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(v) the failure to have filed, or any delay in filing, financing
statements or other similar instruments or documents under the UCC of any
applicable jurisdiction or other applicable laws with respect to any Receivables
in, or purporting to be in, the Receivables Pool and the other Pool Assets,
whether at the time of any purchase or reinvestment or at any subsequent time,
(vi) any dispute, claim, offset or defense (other than discharge
in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable
in, or purporting to be in, the Receivables Pool (including a defense based on
such Receivable or the related Contract not being a legal, valid and binding
obligation of such Obligor enforceable against it in accordance with its terms),
or any other claim resulting from the sale of the goods or services related to
such Receivable or the furnishing or failure to furnish such goods or services
or relating to collection activities with respect to such Receivable (if such
collection activities were performed by the Seller or any of its Affiliates
acting as Servicer or by any agent or independent contractor retained by the
Seller or any of its Affiliates),
(vii) any failure of the Seller (or any of its Affiliates acting
as the Servicer) to perform its duties or obligations in accordance with the
provisions hereof or under the Contracts,
(viii) any products liability or other claim, investigation,
litigation or proceeding arising out of or in connection with merchandise,
insurance or services that are the subject of any Contract,
(ix) the commingling of Collections at any time with other funds,
(x) the use of proceeds of purchases or reinvestments, or
(xi) any reduction in Capital as a result of the distribution of
Collections pursuant to Section 1.4(d), if all or a portion of such
distributions shall thereafter be rescinded or otherwise must be returned for
any reason.
Section 3.2 Indemnities by the Servicer.
Without limiting any other rights that the Administrator, any
Purchasers, any Liquidity Banks, any Program Support Provider or any other
Indemnified Party may have hereunder or under applicable law, the Servicer
hereby agrees to indemnify each Indemnified Party from and against any and all
Indemnified Amounts arising out of or resulting from (whether directly or
indirectly): (a) the failure of any information contained in an Information
Package to be true and correct, or the failure of any other information provided
to any such Indemnified Party by, or on behalf of, the Servicer to be true and
correct, (b) the failure of any representation, warranty or statement made or
deemed made by the Servicer (or any of its officers) under or in connection with
this Agreement to have been true and correct as of the date made or deemed made
in all respects when made, (c) the failure by the Servicer to comply with any
applicable law, rule or regulation with respect to any Pool Receivable or the
related Contract, (d) any dispute, claim, offset or defense of the Obligor to
the payment of any Receivable in, or purporting to be in, the Receivables Pool
resulting from or related to the
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collection activities with respect to such Receivable, or (e) any failure of the
Servicer to perform its duties or obligations in accordance with the provisions
hereof.
ARTICLE IV.
ADMINISTRATION AND COLLECTIONS
Section 4.1 Appointment of the Servicer.
(a) The servicing, administering and collection of the Pool Receivables
shall be conducted by the Person so designated from time to time as the Servicer
in accordance with this Section. Until the Administrator gives notice to Peabody
(in accordance with this Section) of the designation of a new Servicer, Peabody
is hereby designated as, and hereby agrees to perform the duties and obligations
of, the Servicer pursuant to the terms hereof. Upon the occurrence of a
Termination Event, the Administrator may designate as Servicer any Person
(including itself) to succeed Peabody or any successor Servicer, on the
condition in each case that any such Person so designated shall agree to perform
the duties and obligations of the Servicer pursuant to the terms hereof.
(b) Upon the designation of a successor Servicer as set forth in clause
(a), Peabody agrees that it will terminate its activities as Servicer hereunder
in a manner that the Administrator determines will facilitate the transition of
the performance of such activities to the new Servicer, and Peabody shall
cooperate with and assist such new Servicer. Such cooperation shall include
access to and transfer of related records and use by the new Servicer of all
licenses, hardware or software necessary or desirable to collect the Pool
Receivables and the Related Security.
(c) Peabody acknowledges that, in making their decision to execute and
deliver this Agreement, the Administrator and the Purchasers have relied on
Peabody's agreement to act as Servicer hereunder. Accordingly, Peabody agrees
that it will not voluntarily resign as Servicer.
(d) The Servicer may and hereby does delegate its duties and obligations
hereunder to the Originators as subservicer (each a "Sub-Servicer"); provided,
that, in such delegation: (i) each such Sub-Servicer shall and hereby does agree
in writing to perform the duties and obligations of the Servicer pursuant to the
terms hereof, (ii) the Servicer shall remain primarily liable for the
performance of the duties and obligations so delegated, (iii) the Seller, the
Administrator and the Purchasers shall have the right to look solely to the
Servicer for performance, and (iv) the terms of any agreement with any
Sub-Servicer shall and hereby do provide that the Administrator may terminate
such agreement upon the termination of the Servicer hereunder by giving notice
of its desire to terminate such agreement to the Servicer (and the Servicer
shall provide appropriate notice to each such Sub-Servicer); provided, however,
that if any such delegation is to any Person other than Arclar Company, LLC,
Black Beauty Coal Company, Twentymile Coal Company, Caballo Coal Company,
Eastern Associated Coal, LLC, COALSALES II, LLC, Peabody Coal Company, LLC,
Peabody Western Coal Company, Powder River Coal Company, Peabody Holding
Company, Inc., COALTRADE, LLC, COALTRADE International, LLC, or COALSALES, LLC,
the Administrator shall have consented in writing in advance to such delegation.
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Section 4.2 Duties of the Servicer.
(a) The Servicer shall take or cause to be taken all such action as may be
necessary or advisable to administer and collect each Pool Receivable from time
to time, all in accordance with this Agreement and all applicable laws, rules
and regulations, with reasonable care and diligence, and in accordance with the
Credit and Collection Policies. The Servicer shall set aside, for the accounts
of the Seller and the Purchasers, the amount of the Collections to which each is
entitled in accordance with Article I. The Servicer may, in accordance with the
applicable Credit and Collection Policy, extend the maturity of any Pool
Receivable and extend the maturity or adjust the Outstanding Balance of any
Defaulted Receivable as the Servicer may determine to be appropriate to maximize
Collections thereof; provided, however, that: for the purposes of this
Agreement, (i) such extension shall not change the number of days such Pool
Receivable has remained unpaid from the date of the invoice date related to such
Pool Receivable, (ii) such extension or adjustment shall not alter the status of
such Pool Receivable as a Delinquent Receivable or a Defaulted Receivable or
limit the rights of any of the Purchasers or the Administrator under this
Agreement and (iii) if a Termination Event has occurred and is continuing and
Peabody or an Affiliate thereof is serving as the Servicer, Peabody or such
Affiliate may make such extension or adjustment only upon the prior approval of
the Administrator. The Seller shall deliver to the Servicer and the Servicer
shall hold for the benefit of the Seller and the Administrator (individually and
for the benefit of the Purchasers), in accordance with their respective
interests, all records and documents (including computer tapes or disks) with
respect to each Pool Receivable. Notwithstanding anything to the contrary
contained herein, the Administrator may direct the Servicer (whether the
Servicer is Peabody or any other Person) to commence or settle any legal action
to enforce collection of any Pool Receivable or to foreclose upon or repossess
any Related Security.
(b) The Servicer shall, as soon as practicable following actual receipt of
collected funds, turn over to the Seller the collections of any indebtedness
that is not a Pool Receivable, less, if Peabody or an Affiliate thereof is not
the Servicer, all reasonable and appropriate out-of-pocket costs and expenses of
such Servicer of servicing, collecting and administering such collections. The
Servicer, if other than Peabody or an Affiliate thereof, shall, as soon as
practicable upon demand, deliver to the Seller all records in its possession
that evidence or relate to any indebtedness that is not a Pool Receivable, and
copies of records in its possession that evidence or relate to any indebtedness
that is a Pool Receivable.
(c) The Servicer's obligations hereunder shall terminate on the later of:
(i) the Facility Termination Date, (ii) the date on which no Capital of or
Discount in respect of the Purchased Interest shall be outstanding, (iii) the
date the LC Participation Amount is cash collateralized in full and (iv) the
date on which all amounts required to be paid to the Purchasers, the
Administrator and any other Indemnified Party or Affected Person hereunder shall
have been paid in full.
After such termination, if Peabody or an Affiliate thereof was not the
Servicer on the date of such termination, the Servicer shall promptly deliver to
the Seller all books, records and related materials that the Seller previously
provided to the Servicer, or that have been obtained by the Servicer, in
connection with this Agreement.
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Section 4.3 Lock-Box Arrangements.
Prior to the initial purchase hereunder, the Seller shall enter into
Lock-Box Agreements with all of the Lock-Box Banks and deliver original
counterparts thereof to the Administrator. Upon the occurrence of a Termination
Event, the Administrator may at any time thereafter give notice to each Lock-Box
Bank that the Administrator is exercising its rights under the Lock-Box
Agreements to do any or all of the following: (a) to have the exclusive
ownership and control of the Lock-Box Accounts transferred to the Administrator
and to exercise exclusive dominion and control over the funds deposited therein,
(b) to have the proceeds that are sent to the respective Lock-Box Accounts
redirected pursuant to the Administrator's instructions rather than deposited in
the applicable Lock-Box Account, and (c) to take any or all other actions
permitted under the applicable Lock-Box Agreement. The Seller hereby agrees that
if the Administrator at any time takes any action set forth in the preceding
sentence, the Administrator shall have exclusive control of the proceeds
(including Collections) of all Pool Receivables and the Seller hereby further
agrees to take any other action that the Administrator may reasonably request to
transfer such control. Any proceeds of Pool Receivables received by the Seller
or the Servicer thereafter shall be sent immediately to the Administrator. The
parties hereto hereby acknowledge that if at any time the Administrator takes
control of any Lock-Box Account, the Administrator shall not have any rights to
the funds therein in excess of the unpaid amounts due to the Administrator, the
Purchasers or any other Person hereunder, and the Administrator shall distribute
or cause to be distributed such funds in accordance with Section 4.2(b) and
Article I (in each case as if such funds were held by the Servicer thereunder).
Section 4.4 Enforcement Rights.
(a) At any time following the occurrence and during the continuation of a
Termination Event:
(i) the Administrator may direct the Obligors that payment of all
amounts payable under any Pool Receivable is to be made directly to the
Administrator or its designee,
(ii) the Administrator may instruct the Seller or the Servicer to
give notice of the Purchasers' interest in Pool Receivables to each Obligor,
which notice shall direct that payments be made directly to the Administrator or
its designee, and the Seller or the Servicer, as the case may be, shall give
such notice at the expense of the Seller or the Servicer, as the case may be;
provided, that if the Seller or the Servicer, as the case may be, fails to so
notify each Obligor, the Administrator (at the Seller's or the Servicer's, as
the case may be, expense) may so notify the Obligors, and
(iii) the Administrator may request the Servicer to, and upon
such request the Servicer shall: (A) assemble all of the records necessary or
desirable to collect the Pool Receivables and the Related Security, and transfer
or license to a successor Servicer the use of all software necessary or
desirable to collect the Pool Receivables and the Related Security, and make the
same available to the Administrator or its designee at a place selected by the
Administrator, and (B) segregate all cash, checks and other instruments received
by it from time
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to time constituting Collections in a manner acceptable to the Administrator
and, promptly upon receipt, remit all such cash, checks and instruments, duly
endorsed or with duly executed instruments of transfer, to the Administrator or
its designee.
(b) The Seller hereby authorizes the Administrator, and irrevocably
appoints the Administrator as its attorney-in-fact with full power of
substitution and with full authority in the place and stead of the Seller, which
appointment is coupled with an interest, to take any and all steps in the name
of the Seller and on behalf of the Seller necessary or desirable following the
occurrence and during the continuation of a Termination Event, in the
determination of the Administrator, to collect any and all amounts or portions
thereof due under any and all Pool Assets, including endorsing the name of the
Seller on checks and other instruments representing Collections and enforcing
such Pool Assets. Notwithstanding anything to the contrary contained in this
subsection, none of the powers conferred upon such attorney-in-fact pursuant to
the preceding sentence shall subject such attorney-in-fact to any liability if
any action taken by it shall prove to be inadequate or invalid, nor shall they
confer any obligations upon such attorney-in-fact in any manner whatsoever.
Section 4.5 Responsibilities of the Seller.
(a) Anything herein to the contrary notwithstanding, the Seller shall: (i)
perform all of its obligations, if any, under the Contracts related to the Pool
Receivables to the same extent as if interests in such Pool Receivables had not
been transferred hereunder, and the exercise by the Administrator or any
Purchaser of their respective rights hereunder shall not relieve the Seller from
such obligations, and (ii) pay when due any taxes, including any sales taxes
payable in connection with the Pool Receivables and their creation and
satisfaction. Neither the Administrator nor any Purchaser shall have any
obligation or liability with respect to any Pool Asset, nor shall any of them be
obligated to perform any of the obligations of the Seller, Peabody or any
Originator thereunder.
(b) Peabody hereby irrevocably agrees that if at any time it shall cease to
be the Servicer hereunder, it shall act (if the then-current Servicer so
requests) as the data-processing agent of the Servicer and, in such capacity,
Peabody shall conduct the data-processing functions of the administration of the
Receivables and the Collections thereon in substantially the same way that
Peabody conducted such data-processing functions while it acted as the Servicer.
Section 4.6 Servicing Fee.
(a) Subject to clause (b), the Servicer shall be paid a fee equal to 1.00%
per annum (the "Servicing Fee Rate") of the daily average aggregate Outstanding
Balance of the Pool Receivables. The Purchasers' Share of such fee shall be paid
through the distributions contemplated by Section 1.4(d), and the Seller's Share
of such fee shall be paid by the Seller on each Monthly Settlement Date.
(b) If the Servicer ceases to be Peabody or an Affiliate thereof, the
servicing fee shall be the greater of: (i) the amount calculated pursuant to
clause (a), and (ii) an alternative amount specified by the successor Servicer
not to exceed 110% of the aggregate reasonable costs and
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expenses incurred by such successor Servicer in connection with the performance
of its obligations as Servicer.
Section 4.7 Authorization and Action of the Administrator.
Each Purchaser hereby accepts the appointment of and irrevocably
authorizes the Administrator to take such action as agent on its behalf and to
exercise such powers as are delegated to the Administrator by the terms hereof,
together with such powers as are reasonably incidental thereto. The
Administrator shall not be required to take any action which exposes such
Administrator to personal liability or which is contrary to this Agreement or
applicable law. The appointment and authority of the Administrator hereunder
shall terminate at the latest of the Facility Termination Date, the date on
which no Capital of or Discount in respect of the Purchased Interest shall be
outstanding, the date the LC Participation Amount is cash collateralized in full
or the date all other amounts owed by the Seller under this Agreement to any
Purchaser, the Administrator and any other Indemnified Party or Affected Person
shall be paid in full.
Section 4.8 Nature of Administrator's Duties.
The Administrator shall have no duties or responsibilities except
those expressly set forth in this Agreement or in the other Transaction
Documents. The duties of the Administrator shall be mechanical and
administrative in nature. The Administrator shall not have, by reason of this
Agreement, a fiduciary relationship in respect of any Purchaser. Nothing in this
Agreement or any of the Transaction Documents, express or implied, is intended
to or shall be construed to impose upon the Administrator any obligations in
respect of this Agreement or any of the Transaction Documents except as
expressly set forth herein or therein. The Administrator shall not have any duty
or responsibility, either initially or on a continuing basis, to provide any
Purchaser with any credit or other information with respect to the Seller, any
Originator, any Sub-Servicer or the Servicer, whether coming into its possession
before the date hereof or at any time or times thereafter. If the Administrator
seeks the consent or approval of the Purchasers to the taking or refraining from
taking any action hereunder, the Administrator shall send notice thereof to each
Purchaser. The Administrator shall promptly notify each Purchaser any time that
the Purchasers have instructed the Administrator to act or refrain from acting
pursuant hereto.
Section 4.9 UCC Filings.
Each of the Seller and the Purchasers expressly recognizes and agrees
that the Administrator may be listed as the assignee or secured party of record
on the various UCC filings required to be made hereunder in order to perfect the
transfer of the Purchased Interest from the Seller to the Purchasers, that such
listing shall be for administrative convenience only in creating a record or
nominee owner to take certain actions hereunder on behalf of the Purchasers and
that such listing will not affect in any way the status of the Purchasers as the
beneficial owners of the Purchased Interest. In addition, such listing shall
impose no duties on the Administrator other than those expressly and
specifically undertaken in accordance with this Section 4.9.
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Section 4.10 Administrator's Reliance, Etc.
Neither the Administrator nor any of its directors, officers, agents
or employees shall be liable for any action taken or omitted to be taken by it
as Administrator under or in connection with this Agreement except for its own
gross negligence or willful misconduct. Without limiting the foregoing, the
Administrator: (i) may consult with legal counsel (including counsel for the
Seller), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts; (ii)
makes no warranty or representation to any Purchaser and shall not be
responsible to any Purchaser for any statements, warranties or representations
made in or in connection with this Agreement; (iii) shall not have any duty to
ascertain or to inquire as to the performance or observance of any of the terms,
covenants or conditions of this Agreement on the part of the Seller, the
Servicer, any Sub-Servicer or any Originator or to inspect the property
(including the books and records) of the Seller, the Servicer, any Sub-Servicer
or any Originator; (iv) shall not be responsible to any Purchaser for the due
execution, legality, validity, enforceability, genuineness, sufficiency, or
value of this Agreement, or any other instrument or document furnished pursuant
hereto; and (v) shall incur no liability under or in respect of this Agreement
or any other Transaction Document by acting upon any notice (including notice by
telephone), consent, certificate or other instrument or writing (which may be by
telex) believed by it to be genuine and signed or sent by the proper party or
parties. The Administrator may at any time request instructions from the
Purchasers with respect to any actions or approvals which by the terms of this
Agreement or of any of the other Transaction Documents the Administrator is
permitted or required to take or to grant, and if such instructions are promptly
requested, the Administrator shall be absolutely entitled to refrain from taking
any action or to withhold any approval and shall not be under any liability
whatsoever to any Person for refraining from any action or withholding any
approval under any of the Transaction Documents until it shall have received
such instructions from the Issuer and the Majority LC Participants (or, where
expressly required hereunder, from the Required LC Participants or all of the LC
Participants). Without limiting the foregoing, neither the Issuer, the LC Bank
nor any LC Participant shall have any right of action whatsoever against the
Administrator as a result of the Administrator acting or refraining from acting
under this Agreement or any of the other Transaction Documents in accordance
with the instructions of the Issuer and the Majority LC Participants (or, where
expressly required hereunder, the Required LC Participants or all of the LC
Participants).
Section 4.11 Administrator and Affiliates.
To the extent that the Administrator or any of its Affiliates is or
shall become an LC Participant hereunder, the Administrator or such Affiliate,
in such capacity, shall have the same rights and powers under this Agreement as
would any other LC Participant hereunder and may exercise the same as though it
were not the Administrator. The Administrator and its Affiliates may generally
engage in any kind of business with the Seller, any Originator, Peabody, any
Sub-Servicer or the Servicer, any of their respective Affiliates and any Person
who may do business with or own securities of the Seller, any Originator,
Peabody, any Sub-Servicer or the Servicer or any of their respective Affiliates,
all as if it were not the Administrator hereunder and without any duty to
account therefor to the Issuer or the LC Participants.
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Section 4.12 Purchase Decision.
Each of the Purchasers acknowledges that it has, independently and
without reliance upon the Administrator, the LC Bank or any LC Participant and
based on such documents and information as it has deemed appropriate, made its
own evaluation and decision to enter into this Agreement and, to the extent it
so determines, to issue Letters of Credit and/or to purchase an undivided
ownership interest in Receivables hereunder. Each Purchaser also acknowledges
that it will, independently and without reliance upon the Administrator, the LC
Bank or any LC Participant, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own decisions in taking
or not taking action under this Agreement.
Section 4.13 Indemnification.
Each LC Participant agrees to indemnify the Administrator and the LC
Bank (to the extent not reimbursed by the Seller or the Servicer), ratably
according to its Pro Rata Share, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses, or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by, or asserted against the Administrator in any way relating to or
arising out of this Agreement or any action taken or omitted by the
Administrator under this Agreement; provided, however, that no LC Participant
shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses, or disbursements
resulting from the Administrator's or the LC Bank's gross negligence or willful
misconduct, as determined by a final non-appealable judgment of a court of
competent jurisdiction. Without limiting the generality of the foregoing, each
LC Participant agrees to reimburse the Administrator and the LC Bank, ratably
according to their Pro Rata Shares, promptly upon demand, for any out-of-pocket
expenses (including reasonable counsel fees) incurred by the Administrator or
the LC Bank in connection with the administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of its rights or responsibilities under, this
Agreement.
Section 4.14 Successor Administrator.
The Administrator may resign at any time by giving thirty days' notice
thereof to the Purchasers, the Seller and the Servicer. Upon any such
resignation, the Issuer and the Majority LC Participants shall have the right to
appoint a successor Administrator approved by the Seller (which approval will
not be unreasonably withheld or delayed). If no successor Administrator shall
have been so appointed and accepted such appointment within 30 days after the
retiring Administrator's giving of notice of resignation, then the retiring
Administrator may appoint a successor Administrator approved by the Seller
(which approval will not be unreasonably withheld or delayed), which successor
Administrator shall be either (i) a commercial bank having a combined capital
and surplus of at least $250,000,000 or (ii) an Affiliate of such an institution
Upon the acceptance of any appointment as an Administrator hereunder by a
successor Administrator, such successor Administrator shall thereupon succeed to
and become vested with all of the rights, powers, privileges and duties of the
retiring Administrator, and the retiring Administrator shall be discharged from
any further duties and
27
obligations under this Agreement. After any retiring Administrator's resignation
hereunder as Administrator, the provisions of this Article IV shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was an
Administrator under this Agreement.
ARTICLE V.
MISCELLANEOUS
Section 5.1 Amendments, Etc.
No amendment or waiver of any provision of this Agreement or any other
Transaction Document, or consent to any departure by the Seller or the Servicer
therefrom, shall be effective unless in a writing signed by the Administrator,
the LC Bank and the Majority LC Participants; provided, however, that no such
amendment shall (i) decrease the outstanding amount of, or extend the repayment
of or any scheduled payment date for the payment of, any Discount in respect of
any Portion of Capital or any fees owed to a Purchaser without the prior written
consent of such Purchaser; (ii) forgive or waive or otherwise excuse any
repayment of Capital without the prior written consent of each Purchaser
affected thereby; (iii) increase the Commitment of any Purchaser without its
prior written consent; (iv) amend or modify the Pro Rata Share of any LC
Participant without its prior written consent; (v) amend or modify the
provisions of this Section 5.1 or the definition of "Majority LC Participants"
or "Required LC Participants" without the prior written consent of the LC Bank
and all LC Participants; (vi) waive any Termination Event arising from an Event
of Bankruptcy with respect to Seller, the Servicer, any Sub-Servicer or any
Originator; (vii) without the prior written consent of the LC Participant
affected thereby, waive, amend or otherwise modify the definition of Scheduled
Commitment Termination Date for such LC Participant; (viii) amend, modify or
otherwise affect the rights or duties of the Administrator or the LC Bank
hereunder without the prior written consent of the Administrator or the LC Bank,
as the case may be; and (ix) amend, waive or modify any definition or provision
expressly requiring the consent of the Required LC Participants without the
prior written consent of the LC Bank and the Required LC Participants, and, in
the case of any amendment, by the other parties thereto; and then such
amendment, waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given. No failure on the part of the
Issuer or the Administrator to exercise, and no delay in exercising any right
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any right hereunder preclude any other or further exercise thereof
or the exercise of any other right.
Section 5.2 Notices, Etc.
All notices and other communications hereunder shall, unless otherwise
stated herein, be in writing (which shall include facsimile communication) and
be sent or delivered to each party hereto at its address set forth under its
name on the signature pages hereof or at such other address as shall be
designated by such party in a written notice to the other parties hereto.
Notices and communications by facsimile shall be effective when sent (and shall
be followed by hard copy sent by first class mail), and notices and
communications sent by other means shall be effective when received.
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Section 5.3 Successors and Assigns; Assignability; Participations.
(a) Whenever in this Agreement any of the parties hereto is referred to,
such reference shall be deemed to include the successors and assigns of such
party; all covenants, promises and agreements by or on behalf of any parties
hereto that are contained in this Agreement shall bind and inure to the benefit
of their respective successors and assigns. The Seller may not assign or
transfer any of its rights or obligations hereunder without the written consent
of the Administrator, the LC Bank and the Required LC Participants. Each of the
LC Participants, with the prior written consent of the Administrator, the LC
Bank and of the Seller (such consent not to be unreasonably withheld), may
assign any of its interests, rights and obligations hereunder to an Eligible
Assignee; provided, that (i) the Commitment amount to be assigned by any such LC
Participant hereunder shall not be less than $5,000,000 and (ii) prior to the
effective date of any such assignment, the assignee and assignor shall have
executed and delivered to the Administrator and the LC Bank an assignment and
acceptance agreement in form and substance satisfactory to the Administrator and
the LC Bank. Upon the effectiveness of any such permitted assignment, (i) the
assignee thereunder shall, to the extent of the interests assigned to it, be
entitled to the interests, rights and obligations of an LC Participant under
this Agreement and (ii) the assigning LC Participant shall, to the extent of the
interest assigned, be released from any further obligations under this
Agreement.
(b) Notwithstanding anything contained in paragraph (a) of this Section
5.3, each of the LC Bank and each LC Participant may sell participations in all
or any part of any Funded Purchase or Funded Purchases made by such LC
Participant to another bank or other entity so long as (A) no such grant of a
participation shall, without the consent of the Seller, require the Seller to
file a registration statement with the Securities and Exchange Commission and
(B) no holder of any such participation shall be entitled to require such LC
Participant to take or omit to take any action hereunder except that such LC
Participant may agree with such participant that, without such participant's
consent, such LC Participant will not consent to an amendment, modification or
waiver referred to in clauses (i) through (vi) of Section 5.1. Any such
participant shall not have any rights hereunder or under the Transaction
Documents except that such participant shall have rights under Sections 1.7, 1.8
and 1.9 hereunder as if it were an LC Participant; provided that no such
participant shall be entitled to receive any payment pursuant to such sections
which is greater in amount than the payment which the transferor LC Participant
would have otherwise been entitled to receive in respect of the participation
interest so sold.
(c) This Agreement and the Issuer's rights and obligations herein
(including ownership of the Purchased Interest or an interest therein) shall be
assignable, in whole or in part, by the Issuer and its successors and assigns
with the prior written consent of the Seller; provided, however, that such
consent shall not be unreasonably withheld; and provided further, that no such
consent shall be required if the assignment is made to PNC, any Affiliate of PNC
(other than a director or officer of PNC), any Liquidity Bank or other Program
Support Provider or any Person that is: (i) in the business of issuing Notes and
(ii) associated with or administered by PNC or any Affiliate of PNC. Each
assignor may, in connection with the assignment, disclose to the applicable
assignee (that shall have agreed to be bound by Section 5.6) any information
relating to the Servicer, the Seller or the Pool Receivables furnished to such
assignor by or on behalf of the Servicer, the Seller, the Issuer or the
Administrator. The Administrator
29
shall give prior written notice of any assignment of the Issuer's rights and
obligations (including ownership of the Purchased Interest to any Person other
than a Program Support Provider).
(d) The Issuer may at any time grant to one or more banks or other
institutions (each a "Liquidity Bank") party to the Liquidity Agreement, or to
any other Program Support Provider, participating interests in the Purchased
Interest. In the event of any such grant by the Issuer of a participating
interest to a Liquidity Bank or other Program Support Provider, the Issuer shall
remain responsible for the performance of its obligations hereunder. The Seller
agrees that each Liquidity Bank or other Program Support Provider shall be
entitled to the benefits of Sections 1.7 and 1.8.
(e) This Agreement and the rights and obligations of the Administrator
hereunder shall be assignable, in whole or in part, by the Administrator and its
successors and assigns; provided, that unless: (i) such assignment is to an
Affiliate of PNC, (ii) it becomes unlawful for PNC to serve as the Administrator
or (iii) a Termination Event exists, the Seller has consented to such
assignment, which consent shall not be unreasonably withheld.
(f) Except as provided in Section 4.1 (d), none of the Seller, Peabody or
the Servicer may assign its rights or delegate its obligations hereunder or any
interest herein without the prior written consent of the Administrator.
(g) Without limiting any other rights that may be available under
applicable law, the rights of the Issuer and each Liquidity Bank may be enforced
through it or by its agents.
Section 5.4 Costs, Expenses and Taxes.
(a) In addition to the rights of indemnification granted under Sections
1.18 and 3.1, the Seller agrees to pay on demand (which demand shall be
accompanied by documentation thereof in reasonable detail) all reasonable costs
and expenses in connection with the preparation, execution, delivery and
administration (including periodic internal audits by the Administrator of Pool
Receivables, provided that at any time when no Termination Event exists and is
continuing, the Seller shall not be required to pay the costs and expenses of
more than one such audit per year) of this Agreement, the other Transaction
Documents and the other documents and agreements to be delivered hereunder (and
all reasonable costs and expenses in connection with any amendment, waiver or
modification of any thereof), including: (i) Attorney Costs for the
Administrator, the Issuer and their respective Affiliates and agents with
respect thereto and with respect to advising the Administrator, the Issuer and
their respective Affiliates and agents as to their rights and remedies under
this Agreement and the other Transaction Documents, and (ii) all reasonable
costs and expenses (including Attorney Costs), if any, of the Administrator, the
Issuer and their respective Affiliates and agents in connection with the
enforcement of this Agreement and the other Transaction Documents.
(b) In addition, the Seller shall pay on demand any and all stamp and other
taxes and fees payable in connection with the execution, delivery, filing and
recording of this Agreement or the other documents or agreements to be delivered
hereunder, and agrees to save each
30
Indemnified Party harmless from and against any liabilities with respect to or
resulting from any delay in paying or omission to pay such taxes and fees.
Section 5.5 No Proceedings; Limitation on Payments.
Each of the Seller, Peabody, the Servicer, the Administrator, the LC
Bank, each LC Participant and each assignee of the Purchased Interest or any
interest therein, and each Person that enters into a commitment to purchase the
Purchased Interest or interests therein, hereby covenants and agrees that it
will not institute against, or join any other Person in instituting against, the
Issuer any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding, or other proceeding under any federal or state bankruptcy or similar
law, for one year and one day after the latest maturing Note issued by the
Issuer is paid in full. The provision of this Section 5.5 shall survive any
termination of this Agreement.
Section 5.6 Confidentiality.
Each of the Seller and the Servicer agrees to maintain the
confidentiality of this Agreement and the other Transaction Documents (and all
drafts thereof) in communications with third parties and otherwise; provided,
that this Agreement may be disclosed to: (a) third parties to the extent such
disclosure is made pursuant to a written agreement of confidentiality in form
and substance reasonably satisfactory to the Administrator, (b) the Seller's
legal counsel and auditors if they agree to hold it confidential, and (c) as
otherwise required by applicable law (including applicable SEC requirements).
Unless otherwise required by applicable law, each of the Administrator, the
Issuer, the LC Bank and each LC Participant agrees to maintain the
confidentiality of non-public financial information regarding Peabody and its
Subsidiaries and Affiliates; provided, that such information may be disclosed
to: (i) third parties to the extent such disclosure is made pursuant to a
written agreement of confidentiality in form and substance reasonably
satisfactory to Peabody, (ii) legal counsel and auditors of the Issuer, the
Administrator, the LC Bank or any LC Participant if they agree to hold it
confidential, (iii) the rating agencies rating the Notes, (iv) any Program
Support Provider or potential Program Support Provider (if they agree to hold it
confidential), (v) any placement agent placing the Notes and (vi) any regulatory
authorities having jurisdiction over PNC, the Issuer, the LC Bank, any LC
Participant, any Program Support Provider or any Purchaser.
Section 5.7 GOVERNING LAW AND JURISDICTION.
(a) THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED
BY THE INTERNAL LAWS OF THE STATE OF ILLINOIS EXCEPT TO THE EXTENT THAT THE
VALIDITY OR PERFECTION OF A SECURITY INTEREST OR REMEDIES HEREUNDER, IN RESPECT
OF ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER
THAN THE STATE OF ILLINOIS.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE
BROUGHT IN THE COURTS OF THE STATE OF ILLINOIS OR OF THE UNITED STATES FOR THE
NORTHERN DISTRICT OF ILLINOIS; AND, BY
31
EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE PARTIES HERETO CONSENTS,
FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF
THOSE COURTS. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES, TO THE MAXIMUM
EXTENT PERMITTED BY LAW, ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF
VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, THAT IT MAY NOW OR
HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION
IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO. EACH OF THE PARTIES
HERETO WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH
SERVICE MAY BE MADE BY ANY OTHER MEANS PERMITTED BY ILLINOIS LAW.
Section 5.8 Execution in Counterparts.
This Agreement may be executed in any number of counterparts, each of
which, when so executed, shall be deemed to be an original, and all of which,
when taken together, shall constitute one and the same agreement.
Section 5.9 Survival of Termination; Non-Waiver.
The provisions of Sections 1.7, 1.8, 1.18, 1.19, 3.1, 3.2, 5.4, 5.5,
5.6, 5.7, 5.10 and 5.13 shall survive any termination of this Agreement. Neither
the Servicer nor any other Person may waive a breach of Exhibit III, Section
1(g) of this Agreement for so long as the Notes are outstanding.
Section 5.10 WAIVER OF JURY TRIAL.
EACH OF THE PARTIES HERETO WAIVES THEIR RESPECTIVE RIGHTS TO A TRIAL
BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY IN ANY ACTION,
PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST
ANY OTHER PARTY OR PARTIES, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS
OR OTHERWISE. EACH OF THE PARTIES HERETO AGREES THAT ANY SUCH CLAIM OR CAUSE OF
ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE
FOREGOING, EACH OF THE PARTIES HERETO FURTHER AGREES THAT ITS RESPECTIVE RIGHT
TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION,
COUNTERCLAIM OR OTHER PROCEEDING THAT SEEKS, IN WHOLE OR IN PART, TO CHALLENGE
THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR ANY PROVISION HEREOF. THIS
WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT.
Section 5.11 Entire Agreement.
This Agreement and the other Transaction Documents embody the entire
agreement and understanding between the parties hereto, and supersede all prior
or
32
contemporaneous agreements and understandings of such Persons, verbal or
written, relating to the subject matter hereof and thereof, except for any prior
arrangements made with respect to the payment by the Issuer of (or any
indemnification for) any fees, costs or expenses payable to or incurred (or to
be incurred) by or on behalf of the Seller, the Servicer and the Administrator.
Section 5.12 Headings.
The captions and headings of this Agreement and any Exhibit, Schedule
or Annex hereto are for convenience of reference only and shall not affect the
interpretation hereof or thereof.
Section 5.13 Issuer's Liabilities.
The obligations of the Issuer under the Transaction Documents are
solely the corporate obligations of the Issuer. No recourse shall be had for any
obligation or claim arising out of or based upon any Transaction Document
against any stockholder, employee, officer, director or incorporator of the
Issuer; provided, however, that this Section shall not relieve any such Person
of any liability it might otherwise have for its own gross negligence or willful
misconduct.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
33
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective officers thereunto duly authorized, as of the date first
above written.
P&L RECEIVABLES COMPANY, LLC,
as Seller
By: /s/ Xxxxxx X. Xxxxxxx Xx.
------------------------------------
Name: Xxxxxx X. Xxxxxxx Xx.
Title: Vice President and Treasurer
Address: 000 Xxxxxx Xxxxxx
Xx. Xxxxx, XX 00000
Attention: Treasurer
Telephone: 000-000-0000
Facsimile: 000-000-0000
PEABODY ENERGY CORPORATION,
as initial Servicer
By: /s/ Xxxxxx X. Xxxxxxx Xx.
------------------------------------
Name: Xxxxxx X. Xxxxxxx Xx.
Title: Vice President and Treasurer
Address: 000 Xxxxxx Xxxxxx
Xx. Xxxxx, XX 00000
Attention: Treasurer
Telephone: 000-000-0000
Facsimile: 000-000-0000
S-1 Amended and Restated
Receivables Purchase Agreement
ARCLAR COMPANY, LLC,
as Sub-Servicer
By: /s/ Xxxxxx X. Xxxxxxx Xx.
------------------------------------
Name: Xxxxxx X. Xxxxxxx Xx.
Title: Vice President and Treasurer
Address: 000 Xxxxxx Xxxxxx
Xx. Xxxxx, XX 00000
Attention: Treasurer
Telephone: 000-000-0000
Facsimile: 000-000-0000
BLACK BEAUTY COAL COMPANY,
as Sub-Servicer
By: /s/ Xxxxxx X. Xxxxxxx Xx.
------------------------------------
Name: Xxxxxx X. Xxxxxxx Xx.
Title: Vice President and Treasurer
Address: 000 Xxxxxx Xxxxxx
Xx. Xxxxx, XX 00000
Attention: Treasurer
Telephone: 000-000-0000
Facsimile: 000-000-0000
S-2 Amended and Restated
Receivables Purchase Agreement
TWENTYMILE COAL COMPANY,
as Sub-Servicer
By: /s/ Xxxxxx X. Xxxxxxx Xx.
------------------------------------
Name: Xxxxxx X. Xxxxxxx Xx.
Title: Vice President and Treasurer
Address: 000 Xxxxxx Xxxxxx
Xx. Xxxxx, XX 00000
Attention: Treasurer
Telephone: 000-000-0000
Facsimile: 000-000-0000
CABALLO COAL COMPANY,
as Sub-Servicer
By: /s/ Xxxxxx X. Xxxxxxx Xx.
------------------------------------
Name: Xxxxxx X. Xxxxxxx Xx.
Title: Vice President and Treasurer
Address: 1013 Boxelder
Caller Xxx 0000
Xxxxxxx, XX 00000
Attention: Treasurer
Telephone: 000-000-0000
Facsimile: 000-000-0000
S-3 Amended and Restated
Receivables Purchase Agreement
EASTERN ASSOCIATED COAL, LLC,
as Sub-Servicer
By: /s/ Xxxxxx X. Xxxxxxx Xx.
------------------------------------
Name: Xxxxxx X. Xxxxxxx Xx.
Title: Vice President and Treasurer
Address: 000 Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Treasurer
Telephone: 000-000-0000
Facsimile: 000-000-0000
COALSALES II, LLC,
as Sub-Servicer
By: /s/ Xxxxxx X. Xxxxxxx Xx.
------------------------------------
Name: Xxxxxx X. Xxxxxxx Xx.
Title: Vice President and Treasurer
Address: 000 Xxxxxx Xx.
Xx. Xxxxx, XX 00000-0000
Attention: Treasurer
Telephone: 000-000-0000
Facsimile: 000-000-0000
S-4 Amended and Restated
Receivables Purchase Agreement
PEABODY COAL COMPANY, LLC,
as Sub-Servicer
By: /s/ Xxxxxx X. Xxxxxxx Xx.
------------------------------------
Name: Xxxxxx X. Xxxxxxx Xx.
Title: Vice President and Treasurer
Address: 000 Xxxxxx Xx.
Xx. Xxxxx, XX 00000-0000
Attention: Treasurer
Telephone: 000-000-0000
Facsimile: 000-000-0000
PEABODY WESTERN COAL COMPANY,
as Sub-Servicer
By: /s/ Xxxxxx X. Xxxxxxx Xx.
------------------------------------
Name: Xxxxxx X. Xxxxxxx Xx.
Title: Vice President and Treasurer
Address: 000 Xxxxxx Xx.
Xx. Xxxxx, XX 00000-0000
Attention: Treasurer
Telephone: 000-000-0000
Facsimile: 000-000-0000
S-5 Amended and Restated
Receivables Purchase Agreement
POWDER RIVER COAL COMPANY
as Sub-Servicer
By: /s/ Xxxxxx X. Xxxxxxx Xx.
------------------------------------
Name: Xxxxxx X. Xxxxxxx Xx.
Title: Vice President and Treasurer
Address: 0000 Xxxx Xxxxxxxx
Xxxxxxx, XX 00000
Attention: Treasurer
Telephone: 000-000-0000
Facsimile: 000-000-0000
PEABODY HOLDING COMPANY, INC.,
as Sub-Servicer
By: /s/ Xxxxxx X. Xxxxxxx Xx.
------------------------------------
Name: Xxxxxx X. Xxxxxxx Xx.
Title: Vice President and Treasurer
Address: 000 Xxxxxx Xx.
Xx. Xxxxx, XX 00000-0000
Attention: Treasurer
Telephone: 000-000-0000
Facsimile: 000-000-0000
S-6 Amended and Restated
Receivables Purchase Agreement
COALTRADE, LLC,
as Sub-Servicer
By: /s/ Xxxxxx X. Xxxxxxx Xx.
------------------------------------
Name: Xxxxxx X. Xxxxxxx Xx.
Title: Vice President and Treasurer
Address: 000 Xxxxxx Xx.
Xx. Xxxxx, XX 00000-0000
Attention: Treasurer
Telephone: 000-000-0000
Facsimile: 000-000-0000
COALTRADE INTERNATIONAL, LLC,
as Sub-Servicer
By: /s/ Xxxxxx X. Xxxxxxx Xx.
------------------------------------
Name: Xxxxxx X. Xxxxxxx Xx.
Title: Vice President and Treasurer
Address: 000 Xxxxxx Xx.
Xx. Xxxxx, XX 00000-0000
Attention: Treasurer
Telephone: 000-000-0000
Facsimile: 000-000-0000
S-7 Amended and Restated
Receivables Purchase Agreement
COALSALES, LLC,
as Sub-Servicer
By: /s/ Xxxxxx X. Xxxxxxx Xx.
------------------------------------
Name: Xxxxxx X. Xxxxxxx Xx.
Title: Vice President and Treasurer
Address: 000 Xxxxxx Xx.
Xx. Xxxxx, XX 00000-0000
Attention: Treasurer
Telephone: 000-000-0000
Facsimile: 000-000-0000
S-8 Amended and Restated
Receivables Purchase Agreement
MARKET STREET FUNDING CORPORATION,
as Issuer
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
Address: Market Street Funding
Corporation
c/o AMACAR Group, LLC
0000 Xxxxxxxx Xxxxxxxxx,
Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
With a copy to:
PNC Bank, National Association
One PNC Plaza, 26th Floor
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxx X. Xxxxxxxx
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
S-9 Amended and Restated
Receivables Purchase Agreement
PNC BANK, NATIONAL ASSOCIATION,
as Administrator
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
Address: PNC Bank, National
Association
One PNC Plaza, 26th Floor
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxx X. Xxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
LC BANK/LC PARTICIPANTS:
PNC BANK, NATIONAL ASSOCIATION,
as the LC Bank and as an LC Participant
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Senior Vice President
Address: PNC Bank, National
Association
000 Xxxxx Xxxxxx
Xxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
Commitment: $225,000,000
Pro-Rata Share: 100%
S-10 Amended and Restated
Receivables Purchase Agreement
EXHIBIT I
DEFINITIONS
As used in the Agreement (including its Exhibits, Schedules and Annexes),
the following terms shall have the following meanings (such meanings to be
equally applicable to both the singular and plural forms of the terms defined).
Unless otherwise indicated, all Section, Annex, Exhibit and Schedule references
in this Exhibit are to Sections of and Annexes, Exhibits and Schedules to the
Agreement.
"Administration Account" means the account number 1002422076 of the
Administrator maintained at the office of PNC at One PNC Plaza, 000 Xxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000, or such other account as may be so
designated in writing by the Administrator to the Servicer.
"Administrator" has the meaning set forth in the preamble to the Agreement.
"Adverse Claim" means a lien, security interest or other charge or
encumbrance, or any other type of preferential arrangement; it being understood
that any thereof in favor of, or assigned to, the Administrator (for the benefit
of the Purchasers) shall not constitute an Adverse Claim.
"Affected Person" has the meaning set forth in Section 1.7 of the
Agreement.
"Affiliate" means, as to any Person: (a) any Person that, directly or
indirectly, is in control of, is controlled by or is under common control with
such Person, or (b) who is a director or officer: (i) of such Person or (ii) of
any Person described in clause (a), except that, with respect to the Issuer,
Affiliate shall mean the holder(s) of its capital stock. For purposes of this
definition, control of a Person shall mean the power, direct or indirect: (x) to
vote 25% or more of the securities having ordinary voting power for the election
of directors or managers of such Person, or (y) to direct or cause the direction
of the management and policies of such Person, in either case whether by
ownership of securities, contract, proxy or otherwise.
"Agreement" has the meaning set forth in the preamble to the Agreement.
"Alternate Rate" for any Settlement Period for any Portion of Capital of
the Purchased Interest means an interest rate per annum equal to: (a) 1.50% per
annum above the Euro-Rate for such Settlement Period; provided, however, that if
(x) it shall become unlawful for any Purchaser or Program Support Provider to
obtain funds in the London interbank eurodollar market in order to make, fund or
maintain any Purchased Interest, or if such funds shall not be reasonably
available to any Purchaser or Program Support Provider, or (y) there shall not
be at least two Business Days prior to the commencement of an applicable
Settlement Period to determine a Euro-Rate in accordance with its terms, then
the "Alternate Rate" shall be equal to the Base Rate in effect for each day
during the remainder of such Settlement Period or (b) if requested by the Seller
the Base Rate for such Settlement Period; provided, however, that the "Alternate
Rate" for any day while a Termination Event exists shall be an interest rate
equal to 2.00% per annum above the Base Rate in effect on such day.
I-1
"Attorney Costs" means and includes all reasonable fees and disbursements
of any law firm or other external counsel.
"Bankruptcy Code" means the United States Bankruptcy Reform Act of 1978 (11
U.S.C.Section 101, et seq.), as amended from time to time.
"Base Rate" means, for any day, a fluctuating interest rate per annum as
shall be in effect from time to time, which rate shall be at all times equal to
the higher of:
(a) the rate of interest in effect for such day as publicly announced
from time to time by PNC in Pittsburgh, Pennsylvania as its "prime rate."
Such "prime rate" is set by PNC based upon various factors, including PNC's
costs and desired return, general economic conditions and other factors,
and is used as a reference point for pricing some loans, which may be
priced at, above or below such announced rate, and
(b) 0.50% per annum above the latest Federal Funds Rate.
"Base Rate Portion of Capital" shall mean a Portion of Capital, the
Discount with respect to which is calculated at a per annum rate based on the
interest rate determined by reference to the Base Rate.
"BBA" means the British Bankers' Association.
"Benefit Plan" means any employee benefit pension plan as defined in
Section 3(2) of ERISA in respect of which the Seller, any Originator, Peabody or
any ERISA Affiliate is, or at any time during the immediately preceding six
years was, an "employer" as defined in Section 3(5) of ERISA.
"Business Day" means any day (other than a Saturday or Sunday) on which:
(a) banks are not authorized or required to close in New York City, New York, or
Pittsburgh, Pennsylvania and (b) if this definition of "Business Day" is
utilized in connection with the Euro-Rate, dealings are carried out in the
London interbank market.
"Capital" means the aggregate amounts paid to the Seller in connection with
Funded Purchases in respect of the Purchased Interest by the Purchasers pursuant
to Section 1.2 of the Agreement (including Section 1.2(e)), as reduced from time
to time by Collections distributed and applied on account of such Capital
pursuant to Section 1.4(d) of the Agreement; provided, that if such Capital
shall have been reduced by any distribution and thereafter all or a portion of
such distribution is rescinded or must otherwise be returned for any reason,
such Capital shall be increased by the amount of such rescinded or returned
distribution as though it had not been made.
"Change in Control" means (a) Peabody ceases to own, directly or
indirectly, 100% of the membership interests of the Seller free and clear of all
Adverse Claims; (b) a "Change in Control" (as defined in the Senior Notes
Indenture as in effect on September 30, 2005); (c) with respect to any Material
Originator, Peabody ceases to be the beneficial owner (as defined in Rules
13(d)-3 and 13(d)-5 under the Securities Exchange Act of 1934, as amended),
directly or indirectly, of at least 75% of the outstanding shares of voting
securities of such Material
I-2
Originator without the prior written consent of the Administrator, such consent
not to be unreasonably withheld; or (d) Peabody ceases to have beneficial
ownership (as defined in clause (c)), directly or indirectly, of 100% of the
outstanding shares of voting securities of Peabody Holding Company, Inc.
"Closing Date" means September 30, 2005.
"Collateral" shall have the meaning set forth in Section 1.1 of the Sale
Agreement.
"Collections" means, with respect to any Pool Receivable: (a) all funds
that are received by any Originator, Peabody, the Seller or the Servicer in
payment of any amounts owed in respect of such Receivable (including purchase
price, finance charges, interest and all other charges), or applied to amounts
owed in respect of such Receivable (including insurance payments and net
proceeds of the sale or other disposition of repossessed goods or other
collateral or property of the related Obligor or any other Person directly or
indirectly liable for the payment of such Pool Receivable and available to be
applied thereon), (b) all amounts deemed to have been received pursuant to
Section 1.4(e) of the Agreement and (c) all other proceeds of such Pool
Receivable.
"Commitment" shall mean, as to any LC Participant, its commitment to make
participation advances and/or share in draws, in each case, under Letters of
Credit up to that dollar amount set forth as the "Commitment" under its name on
the signature pages to the Agreement (or, as applicable, set forth in any
amendment thereto or set forth in any assignment agreement entered into pursuant
to Section 5.3 as such dollar amount may be reduced pursuant to Section 1.1(b)
of the Agreement, and "Commitments" shall mean the aggregate commitments of the
LC Participants to make participating advances in the Letters of Credit up to
the Purchase Limit (or, if less, the amount permitted under Section 1.1(a)).
"Company Note" has the meaning set forth in Section 3.1 of the Sale
Agreement.
"Concentration Percentage" means: (a) for any Group A Obligor, 15%, (b) for
any Group B Obligor, 7.5%, (c) for any Group C Obligor 5.0% and (d) for any
Group D Obligor, 3.0%.
"Concentration Reserve" means the product of (a) the Capital plus the LC
Participation Amount, and (b)(i) the Concentration Reserve Percentage divided by
(ii) 1 minus the Concentration Reserve Percentage.
"Concentration Reserve Percentage" means the (a) largest of the following
(i) the sum of the five (5) largest Group D Obligor Receivables balances (up to
the Concentration Percentage for each Obligor), (ii) the sum of the three (3)
largest Group C Obligor Receivables balances (up to the Concentration Percentage
for each Obligor), (iii) the sum of the two (2) largest Group B Obligor
Receivables balances (up to the Concentration Percentage for each Obligor), and
(iv) the one (1) largest Group A Obligor Receivables balance (up to the
Concentration Percentage for such Obligor), divided by (b) the Eligible
Receivables.
"Contract" means, with respect to any Receivable, any and all contracts,
instruments, agreements, leases, invoices, notes or other writings pursuant to
which such Receivable arises or
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that evidence such Receivable or under which an Obligor becomes or is obligated
to make payment in respect of such Receivable.
"Contribution Agreement" means that certain Contribution Agreement dated as
of February 20, 2002 by and between the Contributor and the Seller, as the same
may be amended from time to time.
"Contribution Indemnified Amounts" has the meaning set forth in Section 7.1
of the Contribution Agreement.
"Contribution Indemnified Party" has the meaning set forth in Section 7.1
of the Contribution Agreement.
"Contribution Termination Date" has the meaning set forth in Section 1.3 of
the Contribution Agreement.
"Contribution Termination Event" has the meaning set forth in Section 6.1
of the Contribution Agreement.
"Contributor" means Peabody Energy Corporation, a Delaware corporation.
"CP Rate" for any Settlement Period for any Portion of Capital means a rate
calculated by the Administrator equal to: (a) the rate (or if more than one
rate, the weighted average of the rates) at which Notes of the Issuer on each
day during such period have been outstanding; provided, that if such rate(s) is
a discount rate(s), then the CP Rate shall be the rate (or if more than one
rate, the weighted average of the rates) resulting from converting such discount
rate(s) to an interest-bearing equivalent rate plus (b) the commissions and
charges charged by such placement agent or commercial paper dealer with respect
to such Notes, expressed as a percentage of the face amount of such Notes and
converted to an interest-bearing equivalent rate per annum. Notwithstanding the
foregoing, the "CP Rate" for any day while a Termination Event exists shall be
an interest rate equal to 2% above the Base Rate in effect on such day.
"Credit Agreement" means that certain Second Amended and Restated Credit
Agreement, dated as of March 21, 2003, among Peabody, as borrower, the several
lenders from time to time parties thereto, Fleet Securities, Inc., Wachovia
Securities, Inc. and Xxxxxx Brothers Inc., as arrangers, the various other
parties thereto, and Fleet National Bank, as administrative agent, and shall
include, except as otherwise expressly provided herein, such agreement as
amended, restated and/or otherwise modified from time to time in accordance with
the terms thereof, and any extension, replacement, substitution, and/or
refinancing thereof.
"Credit and Collection Policy" means, as the context may require, those
receivables credit and collection policies and practices of the Originators in
effect on the date of the Agreement and described in Schedule I to the
Agreement, as modified in compliance with the Agreement.
"Cut-off Date" has the meaning set forth in the Sale Agreement.
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"Days' Sales Outstanding" means, at any time, an amount computed as of the
last day of each calendar month equal to: (a) the average of the Outstanding
Balance of all Pool Receivables as of the last day of each of the three most
recent calendar months ended on the last day of such calendar month divided by
(b) (i) the aggregate credit sales made by the Originators during the three
calendar months ended on or before the last day of such calendar month divided
by (ii) 90.
"Debt" means: (a) indebtedness for borrowed money, (b) obligations
evidenced by bonds, debentures, notes or other similar instruments, (c)
obligations to pay the deferred purchase price of property or services, (d)
obligations as lessee under leases that shall have been or should be, in
accordance with generally accepted accounting principles, recorded as capital
leases, and (e) obligations under direct or indirect guaranties in respect of,
and obligations (contingent or otherwise) to purchase or otherwise acquire, or
otherwise to assure a creditor against loss in respect of, indebtedness or
obligations of others of the kinds referred to in clauses (a) through (d).
"Defaulted Receivable" means a Receivable:
(a) as to which any payment, or part thereof, remains unpaid for
more than 60 days from the due date for such payment (which shall be
determined without regard to any credit memos or credit balances
available to the Obligor), or
(b) without duplication (i) as to which an Insolvency Proceeding
shall have occurred with respect to the Obligor thereof or any other
Person obligated thereon or owning any Related Security with respect
thereto, or (ii) that has been written off the Seller's books as
uncollectible.
"Default Ratio" means the ratio (expressed as a percentage and rounded to
the nearest 1/100 of 1%, with 5/1000th of 1% rounded upward) computed as of the
last day of each calendar month by dividing: (a) the aggregate Outstanding
Balance of all Pool Receivables that became Defaulted Receivables during such
month (other than Receivables that became Defaulted Receivables as a result of
an Event of Bankruptcy with respect to the Obligor thereof during such month),
by (b) the aggregate credit sales made by the Originators during the month that
is three calendar months before such month.
"Delinquency Ratio" means the ratio (expressed as a percentage and rounded
to the nearest 1/100 of 1%, with 5/1000th of 1% rounded upward) computed as of
the last day of each calendar month by dividing: (a) the aggregate Outstanding
Balance of all Pool Receivables that were Delinquent Receivables on such day by
(b) the aggregate Outstanding Balance of all Pool Receivables on such day.
"Delinquent Receivable" means a Receivable as to which any payment, or part
thereof, remains unpaid for more than 60 days from the due date for such
payment.
"Dilution Horizon" means, for any calendar month, the ratio (expressed as a
percentage and rounded to the nearest 1/100th of 1%, with 5/l000th of 1% rounded
upward) computed as of the last day of such calendar month of: (a) the aggregate
credit sales made by the Originators
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during the two most recent calendar months to (b) the Net Receivables Pool
Balance at the last day of the most recent calendar month.
"Dilution Ratio" means the ratio (expressed as a percentage and rounded to
the nearest 1/100th of 1%, with 5/1000th of 1% rounded upward), computed as of
the last day of each calendar month by dividing: (a) the aggregate amount of
payments required to be made by the Seller pursuant to Section 1.4(e)(i) of the
Agreement during such calendar month by (b) the aggregate credit sales made by
the Originators during the month that is one month prior to the current month.
"Dilution Reserve" means, on any date, an amount equal to: (a) the sum of
the Capital plus the LC Participation Amount at the close of business of the
Seller on such date multiplied by (b) (i) the Dilution Reserve Percentage on
such date, divided by (ii) 100% minus the Dilution Reserve Percentage on such
date.
"Dilution Reserve Percentage" means on any date, the product of (i) the
Dilution Horizon multiplied by (ii) the sum of (x) 2.25 times the average of the
Dilution Ratio for the twelve most recent calendar months and (y) the Spike
Factor.
"Discount" means:
(a) for the Portion of Capital for any Settlement Period to the extent
the Issuer will be funding such Portion of Capital during such Settlement
Period through the issuance of Notes:
CPR x C x ED/360
(b) for the Portion of Capital for any Settlement Period to the extent
the Issuer will not be funding such Portion of Capital during such
Settlement Period through the issuance of Notes or, to the extent the LC
Bank and/or any LC Participant has made a Funded Purchase, in connection
with any drawing under a Letter of Credit, which accrues Discount pursuant
to Section 1.2(e) of the Agreement:
AR x C x ED/Year + TF
where:
AR = the Alternate Rate for the Portion of Capital for such
Settlement Period,
C = the Portion of Capital during such Settlement Period,
CPR = the CP Rate for the Portion of Capital for such Settlement
Period,
ED = the actual number of days during such Settlement Period,
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Year = if such Portion of Capital is funded based upon: (i) the
Euro-Rate, 360 days, and (ii) the Base Rate, 365 or 366 days,
as applicable, and
TF = the Termination Fee, if any, for the Portion of Capital for
such Settlement Period;
provided, that no provision of the Agreement shall require the payment or permit
the collection of Discount in excess of the maximum permitted by applicable law;
and provided further, that Discount for the Portion of Capital shall not be
considered paid by any distribution to the extent that at any time all or a
portion of such distribution is rescinded or must otherwise be returned for any
reason.
"Drawing Date" has the meaning set forth in Section 1.14 of the Agreement.
"Eligible Assignee" means any bank or financial institution acceptable to
the LC Bank and the Administrator.
"Eligible Receivable" means, at any time, a Pool Receivable:
(a) the Obligor of which is (i) a United States resident or if such
Obligor is not a United States resident: (A) such Pool Receivable must
result from goods sold and shipped from the Originator in the United States
and payment for such goods must be denominated and payable only in U.S.
dollars and payable to an Originator at a Lock-Box Account, (B) if such
Obligor is a resident of Canada, the total of all Eligible Receivables the
Obligors of which are Canadian residents does not exceed 3% (or, if at any
time the foreign currency rating of Canada falls below A by Standard &
Poor's or A2 by Moody's, 2%) of all Eligible Receivables and (C) if such
Obligor is neither a U.S. nor a Canadian resident, the total of all
Eligible Receivables the Obligors of which are both non-U.S. and
non-Canadian residents does not exceed 5% of all Eligible Receivables, (ii)
not a government or a governmental subdivision, affiliate or agency, except
that up to 3% of all Eligible Receivables may consist of Receivables the
Obligors of which are governments, governmental subdivisions, affiliates or
agencies, provided, however, that TVA shall not be subject to the
restrictions of this subsection (ii), (iii) not subject to any action of
the type described in paragraph (f) of Exhibit V to the Agreement, (iv) not
an Affiliate of Peabody or any other Originator, and (v) not an Obligor as
to which the Administrator, in its reasonable business judgment, has
notified the Seller that such Obligor is not acceptable,
(b) that is denominated and payable only in U.S. dollars in the United
States to the Originator at a Lockbox Account,
(c) that does not have a stated maturity which is more than 60 days
after the original invoice date of such Receivable,
(d) that arises under a duly authorized Contract for the sale and
delivery of goods or services in the ordinary course of the Originator's
business,
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(e) that arises under a duly authorized Contract that is in full force
and effect and that is a legal, valid and binding obligation of the related
Obligor, enforceable against such Obligor in accordance with its terms,
(f) that conforms in all material respects with all applicable laws,
rulings and regulations in effect,
(g) that is not the subject of any asserted dispute, offset, hold back
defense, Adverse Claim or other claim, provided, that, with respect to any
Receivable which is subject to any such a claim, the amount of such
Receivable which shall be treated as an Eligible Receivable shall equal the
excess of the amount of such Receivable over the amount of such claim
asserted by or available to the account party or other obligor,
(h) that satisfies all applicable requirements of the applicable
Credit and Collection Policy,
(i) that has not been modified, waived or restructured since its
creation, except as permitted pursuant to Section 4.2 of the Agreement,
(j) in which the Seller owns good and marketable title, free and clear
of any Adverse Claims, and that is freely assignable by the Seller
(including without any consent of the related Obligor),
(k) for which the Administrator (on behalf of the Purchasers) shall
have a valid and enforceable undivided percentage ownership or security
interest, to the extent of the Purchased Interest, and a valid and
enforceable first priority perfected security interest therein and in the
Related Security and Collections with respect thereto, in each case free
and clear of any Adverse Claim,
(l) that constitutes an account as defined in the UCC, and that is not
evidenced by instruments or chattel paper,
(m) that is neither a Defaulted Receivable nor a Delinquent
Receivable,
(n) for which neither the Originator thereof, the Seller nor the
Servicer has established any offset arrangements with the related Obligor,
(o) for which Defaulted Receivables of the related Obligor do not
exceed 25% of the Outstanding Balance of all such Obligor's Receivables,
(p) that represents amounts earned and payable by the Obligor that are
not subject to the performance of additional services by the Originator
thereof, and
(q) that is not a Receivable considered to be a "quality accrual" (as
reported on the monthly Information Package), except that up to 5% of
Eligible Receivables may be "quality accruals."
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"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor statute of similar import, together
with the regulations thereunder, in each case as in effect from time to time.
References to sections of ERISA also refer to any successor sections.
"ERISA Affiliate" means: (a) any corporation that is a member of the same
controlled group of corporations (within the meaning of Section 414(b) of the
Internal Revenue Code) as the Seller, any Originator or Peabody, (b) a trade or
business (whether or not incorporated) under common control (within the meaning
of Section 414(c) of the Internal Revenue Code) with the Seller, any Originator
or Peabody, or (c) a member of the same affiliated service group (within the
meaning of Section 414(m) of the Internal Revenue Code) as the Seller, any
Originator, any corporation described in clause (a) or any trade or business
described in clause (b).
"Euro-Rate" means with respect to any Settlement Period the interest rate
per annum determined by the Administrator by dividing (the resulting quotient
rounded upwards, if necessary, to the nearest 1/100th of 1% per annum) (i) the
rate of interest determined by the Administrator in accordance with its usual
procedures (which determination shall be conclusive absent manifest error) to be
the average of the London interbank market offered rates for U.S. dollars quoted
by the BBA as set forth on Dow Xxxxx Markets Service (formerly known as
Telerate) (or appropriate successor or, if the BBA or its successor ceases to
provide display page 3750 (or such other display page on the Dow Xxxxx Markets
Service system as may replace display page 3750) at or about 11:00 a.m. (London
time) on the Business Day which is two (2) Business Days prior to the first day
of such Settlement Period for an amount comparable to the Portion of Capital to
be funded at the Alternate Rate and based upon the Euro-Rate during such
Settlement Period by (ii) a number equal to 1.00 minus the Euro-Rate Reserve
Percentage. The Euro-Rate may also be expressed by the following formula:
Euro-Rate = Average of London interbank offered rates quoted
by BBA as shown on Dow Xxxxx Markets Service display
page 3750 or appropriate successor
----------------------------------------------------
1.00 - Euro-Rate Reserve Percentage
where "Euro-Rate Reserve Percentage" means, the maximum effective percentage in
effect on such day as prescribed by the Board of Governors of the Federal
Reserve System (or any successor) for determining the reserve requirements
(including without limitation, supplemental, marginal, and emergency reserve
requirements) with respect to eurocurrency funding (currently referred to as
"Eurocurrency Liabilities"). The Euro-Rate shall be adjusted with respect to any
Portion of Capital funded at the Alternate Rate and based upon the Euro-Rate
that is outstanding on the effective date of any change in the Euro-Rate Reserve
Percentage as of such effective date. The Administrator shall give prompt notice
to the Seller of the Euro-Rate as determined or adjusted in accordance herewith
(which determination shall be conclusive absent manifest error).
"Event of Bankruptcy" means (a) any case, action or proceeding before any
court or other governmental authority relating to bankruptcy, reorganization,
insolvency, liquidation, receivership, dissolution, winding-up or relief of
debtors or (b) any general assignment for the benefit of creditors of a Person
or any composition, marshalling of assets for creditors of a Person, or other
similar arrangement in respect of its creditors generally or any substantial
I-9
portion of its creditors; in each of cases (a) and (b) undertaken under U.S.
Federal, state or foreign law, including the Bankruptcy Code.
"Excess Concentration" means the sum of the amounts by which the
Outstanding Balance of Eligible Receivables of each Obligor then in the
Receivables Pool exceeds an amount equal to: (a) the Concentration Percentage
for such Obligor multiplied by (b) the Outstanding Balance of all Eligible
Receivables then in the Receivables Pool.
"Extension Request" has the meaning set forth in Section 1.10 of the
Agreement.
"Facility Termination Date" means the earliest to occur of: (a) September
16, 2009, (b) the date determined pursuant to Section 2.2 of the Agreement, (c)
the date the Purchase Limit reduces to zero pursuant to Section 1.1(b) of the
Agreement, (d) the date that the commitments of the Purchasers terminate under
the Liquidity Agreement, (e) the Issuer shall fail to cause the amendment or
modification of any Transaction Document or related opinion as required by
Moody's or Standard and Poor's, and such failure shall continue for 30 days
after such amendment is initially requested, (f) with respect to any LC
Participant, such LC Participant's Scheduled Commitment Termination Date."
"Federal Funds Rate" means, for any day, the per annum rate set forth in
the weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Board (including any such
successor, "H.15(519)") for such day opposite the caption "Federal Funds
(Effective)." If on any relevant day such rate is not yet published in H.
15(519), the rate for such day will be the rate set forth in the daily
statistical release designated as the Composite 3:30 p.m. Quotations for U.S.
Government Securities, or any successor publication, published by the Federal
Reserve Bank of New York (including any such successor, the "Composite 3:30 p.m.
Quotations") for such day under the caption "Federal Funds Effective Rate." If
on any relevant day the appropriate rate is not yet published in either
H.15(519) or the Composite 3:30 p.m. Quotations, the rate for such day will be
the arithmetic mean as determined by the Administrator of the rates for the last
transaction in overnight Federal funds arranged before 9:00 a.m. (New York time)
on that day by each of three leading brokers of Federal funds transactions in
New York City selected by the Administrator.
"Federal Reserve Board" means the Board of Governors of the Federal Reserve
System, or any entity succeeding to any of its principal functions.
"Fee Letter" has the meaning set forth in Section 1.5 of the Agreement.
"Funded Purchase" shall mean a purchase or deemed purchase of undivided
interests in the Purchased Interest under the Agreement which (i) is paid for in
cash (other than through reinvestment of Collections pursuant to Section 1.4(b)
of the Agreement), (ii) treated as a Funded Purchase pursuant to Section 1.2(e)
of the Agreement and/or any of the provisions set forth in Sections 1.11 through
1.20 of the Agreement or (iii) without double counting any of the amounts
described in clause (i) or (ii), above, is the result of the issuance of Notes
by the Issuer, pursuant to the Agreement or otherwise, the proceeds of which are
used to pay back and/or reimburse draws on the LC Bank and/or any LC Participant
under any Letter of Credit, whether on, prior to
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or after the date any such draw is treated as or deemed to be a Funded Purchase
under the Agreement.
"Governmental Authority" means any nation or government, any state or other
political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any body or entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government, including any court, and any Person owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing.
"Group A Obligor" means any Obligor with a short-term rating of at least:
(a) "A1" by Standard & Poor's, or if such Obligor does not have a short-term
rating from Standard & Poor's, a rating of "A+" or better by Standard & Poor's
on its long-term senior unsecured and uncredit-enhanced debt securities, and (b)
"P-1" by Moody's, or if such Obligor does not have a short-term rating from
Moody's, "Al" or better by Moody's on its long-term senior unsecured and
uncredit-enhanced debt securities, and any Special Group A Obligor.
"Group B Obligor" means an Obligor, not a Group A Obligor, with a
short-term rating of at least: (a) "A-2" by Standard & Poor's, or if such
Obligor does not have a short-term rating from Standard & Poor's, a rating of
"BBB+" to "A" by Standard & Poor's on its long-term senior unsecured and
uncredit-enhanced debt securities, and (b) "P-2" by Moody's, or if such Obligor
does not have a short-term rating from Moody's, "Baal" to "A2" by Moody's on its
long-term senior unsecured and uncredit-enhanced debt securities, and any
Special Group B Obligor.
"Group C Obligor" means an Obligor, not a Group A Obligor or a Group B
Obligor, with a short-term rating of at least: (a) "A-3" by Standard & Poor's,
or if such Obligor does not have a short-term rating from Standard & Poor's, a
rating of "BBB-" to "BBB" by Standard & Poor's on its long-term senior unsecured
and uncredit-enhanced debt securities, and (b) "P-3" by Moody's, or if such
Obligor does not have a short-term rating from Moody's, "Baa3" to "Baa2" by
Moody's on its long-term senior unsecured and uncredit-enhanced debt securities,
and any Special Group C Obligor.
"Group D Obligor" means any Obligor that is not a Group A Obligor, Group B
Obligor or Group C Obligor, and any Special Group D Obligor.
"Indemnified Amounts" has the meaning set forth in Section 3.1 of the
Agreement.
"Indemnified Party" has the meaning set forth in Section 3.1 of the
Agreement.
"Independent Director" has the meaning set forth in paragraph 3(c) of
Exhibit IV to the Agreement.
"Information Package" means a report, in substantially the form of Annex A
to the Agreement, furnished to the Administrator pursuant to the Agreement.
"Insolvency Proceeding" means: (a) any case, action or proceeding before
any court or other Governmental Authority relating to bankruptcy,
reorganization, insolvency, liquidation, receivership, dissolution, winding-up
or relief of debtors, or (b) any general assignment for the
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benefit of creditors of a Person, composition, marshaling of assets for
creditors of a Person, or other, similar arrangement in respect of its creditors
generally or any substantial portion of its creditors, in each of cases (a) and
(b) undertaken under U.S. Federal, state or foreign law, including the
Bankruptcy Code.
"Intercreditor Agreement" means that certain Intercreditor Agreement dated
as of February 20, 2002, by and between the Administrator and Bank One, NA, in
its capacity as administrative agent under the Credit Agreement, as such
Intercreditor Agreement may be amended, restated and/or otherwise modified from
time to time in accordance with the terms thereof.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as amended
from time to time, and any successor statute of similar import, together with
the regulations thereunder, in each case as in effect from time to time.
References to sections of the Internal Revenue Code also refer to any successor
sections.
"ISP98 Rules" has the meaning set forth in Section 1.12 of the Agreement.
"Issuer" has the meaning set forth in the preamble to the Agreement.
"LC Bank" has the meaning set forth in the preamble to the Agreement.
"LC Collateral Account" means the account designated as the LC Collateral
Account established and maintained by the Administrator (for the benefit of the
LC Bank and the LC Participants), or such other account as may be so designated
as such by the Administrator.
"LC Commitment" means, the "Commitment" of each LC Participant party hereto
as set forth under its name on the signature pages to the Agreement or as set
forth in any assignments agreement pursuant to which it became a party hereto.
"LC Participant" has the meaning set forth in the preamble to the
Agreement.
"LC Participation Amount" shall mean, at any time, the then aggregate face
amount of the outstanding Letters of Credit.
"Letter of Credit" shall mean any stand-by letter of credit issued by the
LC Bank for the account of the Seller pursuant to the Agreement.
"Letter of Credit Application" has the meaning set forth in Section 1.12 of
the Agreement.
"Liquidity Agent" means PNC in its capacity as the Liquidity Agent pursuant
to the Liquidity Agreement.
"Liquidity Agreement" means the Liquidity Asset Purchase Agreement, dated
as of February 20, 2002, between the purchasers from time to time party thereto,
the Issuer and PNC, as Administrator and Liquidity Agent, as the same maybe
further amended, supplemented or otherwise modified from time to time.
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"Liquidity Bank" shall have the meaning set forth in Section 5.3(d) of the
Agreement.
"Liquidity Termination Date" has the meaning set forth in Section 1.10 of
the Agreement.
"LLC Agreement" means the First Amended and Restated Limited Liability
Company Agreement of P&L Receivables Company, LLC.
"Lock-Box Account" means an account in the name of the Seller and
maintained by the Seller at a bank or other financial institution for the
purpose of receiving Collections.
"Lock-Box Agreement" means an agreement, in form and substance satisfactory
to the Administrator, among the Seller, the Servicer, the Issuer and a Lock-Box
Bank.
"Lock-Box Bank" means any of the banks or other financial institutions
holding one or more Lock-Box Accounts.
"Loss Reserve" means, on any date, an amount equal to: (a) the sum of
Capital plus the LC Participation Amount at the close of business of the Seller
on such date multiplied by (b) (i) the Loss Reserve Percentage on such date
divided by (ii) 100% minus the Loss Reserve Percentage on such date.
"Loss Reserve Percentage" means, on any date, the product of (i) 2.25 times
(ii) the highest average of the Default Ratios for any three consecutive
calendar months during the twelve most recent calendar months and (iii) (A) the
aggregate credit sales made by the Originator during the four most recent
calendar months divided by (B) the Net Receivables Pool Balance as of such date.
"Majority LC Participants" shall mean LC Participants whose Pro Rata Shares
aggregate 51% or more.
"Material Adverse Effect" means with respect to any event or circumstance,
a material adverse effect on:
(a) the assets, operations, business or financial condition of (i) the
Seller, or (ii) Peabody and its Subsidiaries taken as a whole,
(b) the ability of any of the Originators, the Contributor, the
Servicer, any of the Sub-Servicers, the Transferee or the Seller to perform
its obligations under the Agreement or any other Transaction Document to
which it is a party,
(c) the validity or enforceability of the Agreement or any other
Transaction Document, or the validity, enforceability or collectibility of
a material portion of the Pool Receivables, or
(d) the status, perfection, enforceability or priority of the
Administrator's or the Seller's interest in the Pool Assets.
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"Material Originator" means any of the following at any time, so long as
such Person is an Originator: (i) COALSALES II, LLC, a Delaware corporation,
(ii) Powder River Coal Company, a Delaware corporation, (iii) Peabody Western
Coal Company, a Delaware corporation, (iv) Peabody Coal Company, LLC, a Delaware
limited liability company, (v) Black Beauty Coal Company, an Indiana partnership
and (vi) any other Originator now or hereafter party to the Sale Agreement whose
Receivables represent 15% or more of the aggregate Receivables originated by the
Originators in any calendar month during the immediately preceding 12 Settlement
Periods.
"Member" shall have the meaning set forth in Schedule A to the LLC
Agreement.
"Mohave Project" means that certain joint venture that developed, built and
operates the Mohave Generating Station located in Laughlin, Nevada, which joint
venture is owned by Southern California Edison (56%), Nevada Power Company
(14%), Salt River Project Agricultural Improvement and Power District (10%), and
Department of Water and Power of Los Angeles (20%).
"Monthly Settlement Date" means the twenty-first day of each calendar month
(or the next succeeding Business Day if such day is not a Business Day),
beginning March 21, 2002.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Navajo Project" means that certain joint venture that developed, built and
operates the Navajo Electric Generating Station located in Page, Arizona, which
joint venture is owned by Nevada Power Company (11.3%), Salt River Project
Agricultural Improvement and Power District (46%), Department of Water and Power
of Los Angeles (21.2%), Arizona Public Service Co. (14%), and Tucson Gas and
Electric Co. (7.5%).
"Net Receivables Pool Balance" means, at anytime: (a) the Outstanding
Balance of Eligible Receivables then in the Receivables Pool minus (b) Excess
Concentration.
"Notes" means short-term promissory notes issued, or to be issued, by the
Issuer to fund its investments in accounts receivable or other financial assets.
"Obligor" means, with respect to any Receivable, the Person obligated to
make payments pursuant to the Contract relating to such Receivable.
"Obligor Group" means any of the following: Group A Obligor, Group B
Obligor, Group C Obligor or Group D Obligor.
"Order" has the meaning set forth in Section 1.20 of the Agreement.
"Original Agreement" has the meaning set forth in the preliminary
statements of the Agreement.
"Original Agreement Outstanding Amounts" has the meaning set forth in the
preliminary statements of the Agreement.
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"Originator" and "Originators" have the meaning set forth in the Sale
Agreement, as the same may be modified from time to time by adding new
Originators or removing Originators, in each case with the prior written consent
of the Administrator.
"Originator Assignment Certificate" means the assignment by each Originator
to the Contributor, and subsequently to the Seller, in substantially the form of
Exhibit C to the Sale Agreement, evidencing Seller's ownership of the
Receivables generated by the Originators, as the same may be amended,
supplemented, amended and restated, or otherwise modified from time to time in
accordance with the Sale Agreement.
"Other Material Financing Agreement" has the meaning set forth in paragraph
(j) of Exhibit V of the Agreement.
"Outstanding Balance" of any Receivable at any time means the then
outstanding principal balance thereof.
"Paydown Notice" has the meaning set forth in Section 1.4(f)(i) of the
Agreement.
"Payment Date" has the meaning set forth in Section 2.1 of the Sale
Agreement.
"Peabody" has the meaning set forth in the preamble to the Agreement.
"Performance Reserve" means the sum of the Loss Reserve and the Dilution
Reserve.
"Permitted Lock-Box Bank" means a bank or other financial institution with
minimum capital of at least $250,000.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association, joint
venture, limited liability company or other entity, or a government or any
political subdivision or agency thereof.
"PNC" has the meaning set forth in the preamble to the Agreement.
"Pool Assets" has the meaning set forth in Section 1.2(d) of the Agreement.
"Pool Receivable" means a Receivable in the Receivables Pool.
"Portion of Capital" means any separate portion of Capital being funded or
maintained by the Issuer (or its successors or permitted assigns) by reference
to a particular interest rate basis. In addition, at any time when the Capital
of the Purchased Interest is not divided into two or more such portions,
"Portion of Capital" means 100% of the Capital.
"Program Support Agreement" means and includes the Liquidity Agreement and
any other agreement entered into by any Program Support Provider providing for:
(a) the issuance of one or more letters of credit for the account of the Issuer,
(b) the issuance of one or more surety bonds for which the Issuer is obligated
to reimburse the applicable Program Support Provider for any drawings
thereunder, (c) the sale by the Issuer to any Program Support Provider of the
Purchased Interest (or portions thereof) and/or (d) the making of loans and/or
other extensions of
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credit to the Issuer in connection with the Issuer's Receivables-securitization
program contemplated in the Agreement, together with any letter of credit,
surety bond or other instrument issued thereunder (but excluding any
discretionary advance facility provided by the Administrator).
"Program Support Provider" means and includes any Liquidity Bank and any
other Person (other than any customer of the Issuer) now or hereafter extending
credit or having a commitment to extend credit to or for the account of, or to
make purchases from, the Issuer pursuant to any Program Support Agreement.
"Pro Rata Share" shall mean, as to any LC Participant, a fraction, the
numerator of which equals the Commitment of such LC Participant at such time and
the denominator of which equals the aggregate of the Commitments of all LC
Participant at such time.
"Purchase and Sale Indemnified Amounts" has the meaning set forth in
Section 9.1 of the Sale Agreement.
"Purchase and Sale Indemnified Party" has the meaning set forth in Section
9.1 of the Sale Agreement.
"Purchase and Sale Termination Date" has the meaning set forth in Section
1.4 of the Sale Agreement.
"Purchase and Sale Termination Event" has the meaning set forth in Section
8.1 of the Sale Agreement.
"Purchase Facility" has the meaning set forth in Section 1.1 of the Sale
Agreement.
"Purchase Limit" means $225,000,000, as such amount may be reduced pursuant
to Section 1.1 (b) of the Agreement. References to the unused portion of the
Purchase Limit shall mean, at any time, the Purchase Limit minus the sum of the
then aggregate outstanding Capital plus the LC Participation Amount.
"Purchase Notice" has the meaning set forth in Section 1.2(a) of the
Agreement.
"Purchase Price" has the meaning set forth in Section 2.1 of the Sale
Agreement.
"Purchase Report" has the meaning set forth in Section 2.1 of the Sale
Agreement.
"Purchased Interest" means, at any time, the undivided percentage ownership
interest in: (a) each and every Pool Receivable now existing or hereafter
arising, (b) all Related Security with respect to such Pool Receivables and (c)
all Collections with respect to, and other proceeds of, such Pool Receivables
and Related Security. Such undivided percentage interest shall be computed as:
Capital + LC Participation Amount + Total Reserves
--------------------------------------------------
Net Receivables Pool Balance
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The Purchased Interest shall be determined from time to time pursuant to Section
1.3 of the Agreement.
"Purchasers" means the Issuer, the LC Bank and each LC Participant.
"Purchasers' Share" of any amount means such amount multiplied by the
Purchased Interest at the time of determination.
"Receivable" means any indebtedness and other obligations owed to the
Seller (as assignee of the Contributor and each Originator), the Contributor or
any Originator by, or any right of the Seller, the Contributor or any Originator
to payment from or on behalf of, an Obligor, whether constituting an account,
chattel paper, instrument or general intangible, arising in connection with the
sale of goods or the rendering of services by any Originator, and includes the
obligation to pay any finance charges, fees and other charges with respect
thereto. Indebtedness and other obligations arising from any one transaction,
including indebtedness and other obligations represented by an individual
invoice or agreement, shall constitute a Receivable separate from a Receivable
consisting of the indebtedness and other obligations arising from any other
transaction.
"Receivables Pool" means, at any time, all of the then outstanding
Receivables purchased by the Contributor pursuant to the Sale Agreement prior to
the Facility Termination Date.
"Reference Bank" means PNC.
"Reimbursement Obligation" has the meaning set forth in Section 1.14 of the
Agreement.
"Related Rights" has the meaning set forth in Section 1.1 of the Sale
Agreement.
"Related Security" means, with respect to any Receivable:
(a) all of the Seller's, the Contributor's and each Originator's
interest in any goods (including returned goods), and documentation of
title evidencing the shipment or storage of any goods (including returned
goods), relating to any sale giving rise to such Receivable,
(b) all instruments and chattel paper that may evidence such
Receivable,
(c) all other security interests or liens and property subject thereto
from time to time purporting to secure payment of such Receivable, whether
pursuant to the Contract related to such Receivable or otherwise, together
with all UCC financing statements or similar filings relating thereto, and
(d) all of the Seller's, the Contributor's and each Originator's
rights, interests and claims under the Contracts and all guaranties,
indemnities, insurance and other agreements (including the related
Contract) or arrangements of whatever character from time to time
supporting or securing payment of such Receivable or otherwise relating to
such Receivable, whether pursuant to the Contract related to such
Receivable or otherwise.
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"Required LC Participants" shall mean the LC Participants whose Pro Rata
Shares aggregate 66 2/3% or more.
"Response Date" has the meaning set forth in Section 1.10 of the Agreement.
"Responsible Officer" means, with respect to each Originator, the
Contributor, the Servicer, the Transferee and the Seller, any president, vice
president, treasurer, assistant treasurer, secretary, assistant secretary, chief
financial officer, controller or any other officer of any such Person charged
with the responsibility for administration of any Transaction Document.
"Restricted Payments" has the meaning set forth in Section 1(n) of Exhibit
IV of the Agreement.
"Sale Agreement" means the Purchase and Sale Agreement, dated as of
February 20, 2002, between the Contributor and the Originators as such agreement
may be amended, amended and restated, supplemented or otherwise modified from
time to time.
"Scheduled Commitment Termination Date" means with respect to the LC Bank
and any LC Participant, initially September 29, 2006, as such date may be
extended from time to time in the sole discretion of the LC Bank or such LC
Participant, as the case may be.
"Seller" has the meaning set forth in the preamble to the Agreement.
"Seller's Share" of any amount means the greater of: (a) $0 and (b) such
amount minus the Purchasers' Share.
"Senior Notes Indenture" means that certain Indenture, dated as of March
31, 2003, among Peabody, the guarantors named therein, and U.S. Bank National
Association, as trustee.
"Servicer" has the meaning set forth in the preamble to the Agreement.
"Servicer Note" shall mean that certain Promissory Note dated February 20,
2002 made by Peabody in favor of the Seller, as the same may be amended from
time to time.
"Servicing Fee" shall mean the fee referred to in Section 4.6 of the
Agreement.
"Servicing Fee Rate" shall mean the rate referred to in Section 4.6 of the
Agreement.
"Settlement Date" means with respect to any Portion of Capital for any
Settlement Period, (i) prior to the Facility Termination Date, the Monthly
Settlement Date and (ii) on and after the Facility Termination Date, each day
selected from time to time by the Administrator (it being understood that the
Administrator may select such Settlement Date to occur as frequently as daily),
or, in the absence of such selection, the Monthly Settlement Date.
"Settlement Period" means: (a) before the Facility Termination Date: (i)
initially the period commencing on the date of the initial purchase pursuant to
Section 1.2 of the Agreement (or in the case of any fees payable hereunder,
commencing on the Closing Date) and ending on (but not including) the second
Business Day prior to the next Monthly Settlement Date, and
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(ii) thereafter, each period commencing on the second Business Day prior to such
Monthly Settlement Date and ending on (but not including) the second Business
Day prior to the next Monthly Settlement Date, and (b) on and after the Facility
Termination Date: such period (including a period of one day) as shall be
selected from time to time by the Administrator or, in the absence of any such
selection, each period of 30 days from the last day of the preceding Settlement
Period.
"Similar Businesses" means coal production, coal mining, coal brokering,
coal transportation, mine development, power marketing, electricity generation,
power/ energy sales and trading, energy transactions/ asset restructurings, risk
management products associated with energy, fuel/ power integration and other
energy related businesses, ash disposal, environmental remediation, coal,
natural gas, petroleum or other fossil fuel exploration, production, marketing,
transportation and distribution and other related businesses, and activities of
Peabody and its Subsidiaries as of the Closing Date and any business or activity
that is reasonably similar thereto or a reasonable extension, development or
expansion thereof or ancillary thereto.
"Solvent" means, with respect to any Person at any time, a condition under
which:
(i) the fair value and present fair saleable value of such Person's
total assets is, on the date of determination, greater than such Person's
total liabilities (including contingent and unliquidated liabilities) at
such time;
(ii) the fair value and present fair saleable value of such Person's
assets is greater than the amount that will be required to pay such
Person's probable liability on its existing debts as they become absolute
and matured ("debts," for this purpose, includes all legal liabilities,
whether matured or unmatured, liquidated or unliquidated, absolute, fixed,
or contingent);
(iii) such Person is and shall continue to be able to pay all of its
liabilities as such liabilities mature; and
(iv) such Person does not have unreasonably small capital with which
to engage in its current and in its anticipated business.
For purposes of this definition:
(A) the amount of a Person's contingent or unliquidated liabilities at
any time shall be that amount which, in light of all the facts and
circumstances then existing, represents the amount which can reasonably be
expected to become an actual or matured liability;
(B) the "fair value" of an asset shall be the amount which may be
realized within a reasonable time either through collection or sale of such
asset at its regular market value;
(C) the "regular market value" of an asset shall be the amount which a
capable and diligent business person could obtain for such asset from an
interested buyer who is willing to Purchase such asset under ordinary
selling conditions; and
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(D) the "present fair saleable value" of an asset means the amount
which can be obtained if such asset is sold with reasonable promptness in
an arm's-length transaction in an existing and not theoretical market.
"Special Member" shall have the meaning set forth in Schedule A to the LLC
Agreement.
"Special Obligor" means each of the Navajo Project and the Mohave Project
(each, a "Project"), for so long as, with respect to each Project, (a) the
agreement among the project participants requires that upon the default of any
participant, the non-defaulting participants are required to cure any such
default, and (b) Peabody represents and warrants that, to its knowledge, the
statement set forth in subsection (a) above is true, complete and correct. Each
Project shall be deemed to be a "Special Group A Obligor" hereunder for so long
as such Project has at least one project participant with the rating of a Group
A Obligor; each Project shall be deemed to be a "Special Group B Obligor"
hereunder for so long as such Project has at least one project participant with
the rating of a Group B Obligor (but no project participants with the rating of
a Group A Obligor); each Project shall be deemed to be a "Special Group C
Obligor" hereunder for so long as such Project has at least one project
participant with the rating of a Group C Obligor (but no project participants
with the rating of a Group A Obligor or a Group B Obligor); and each Project
shall be deemed to be a "Special Group D Obligor" hereunder for so long as such
Project has no project participants with the rating of a Group A Obligor, a
Group B Obligor or a Group C Obligor.
"Special Obligor Group" means any one of the following: Special Group A
Obligor, Special Group B Obligor, Special Group C Obligor, or Special Group D
Obligor.
"Spike Factor" means, for any calendar month, (a) the positive difference,
if any, between: (i) the highest Dilution Ratio for any one calendar month
during the twelve most recent calendar months and (ii) the arithmetic average of
the Dilution Ratios for such twelve months times (b) (i) the highest Dilution
Ratio for any one calendar month during the twelve most recent calendar months
divided by (ii) the arithmetic average of the Dilution Ratios for such twelve
months.
"Standard & Poor's" means Standard & Poor's, a division of The XxXxxx-Xxxx
Companies, Inc.
"Sub-Servicer" has the meaning set forth in Section 4.1 of the Agreement.
"Subsidiary" means, as to any Person, a corporation, partnership, limited
liability company or other entity of which shares of stock of each class or
other interests having ordinary voting power (other than stock or other
interests having such power only by reason of the happening of a contingency) to
elect a majority of the Board of Directors or other managers of such entity are
at the time owned, or management of which is otherwise controlled: (a) by such
Person, (b) by one or more Subsidiaries of such Person or (c) by such Person and
one or more Subsidiaries of such Person.
"Termination Day" means: (a) each day on which the conditions set forth in
Section 2 of Exhibit II to the Agreement are not satisfied or (b) each day that
occurs on or after the Facility Termination Date.
I-20
"Termination Event" has the meaning specified in Exhibit V to the
Agreement.
"Termination Fee" means, for any Settlement Period during which a
Termination Day occurs, the amount, if any, by which: (a) the additional
Discount (calculated without taking into account any Termination Fee or any
shortened duration of such Settlement Period pursuant to the definition thereof)
that would have accrued during such Settlement Period on the reductions of
Capital relating to such Settlement Period had such reductions not been made,
exceeds (b) the income, if any, received by the Issuer from investing the
proceeds of such reductions of Capital, as determined by the Administrator,
which determination shall be binding and conclusive for all purposes, absent
manifest error.
"Total Leverage Certificate" means each certificate of Peabody in
substantially the form of Annex F delivered pursuant to Section 2(1)(iii) of
Exhibit IV to the Agreement.
"Total Reserves" means, at any time the sum of: (a) the Yield Reserve, plus
the greater of (b) (i) the Performance Reserve, or (ii) the Concentration
Reserve.
"Transaction Documents" means the Agreement, the Lock-Box Agreements, the
Fee Letter, the Sale Agreement, the Contribution Agreement, the Intercreditor
Agreement, the Servicer Note, and all other certificates, instruments, UCC
financing statements, reports, notices, agreements and documents executed or
delivered under or in connection with the Agreement, in each case as the same
may be amended, supplemented or otherwise modified from time to time in
accordance with the Agreement.
"TVA" means Tennessee Valley Authority, an Obligor of the Originators.
"UCC" means the Uniform Commercial Code as from time to time in effect in
the applicable jurisdiction.
"UCP 500" has the meaning set forth in Section 1.12 of the Agreement.
"Unmatured Contribution Termination Event" means any event which, with the
giving of notice or lapse of time, or both, would become a Contribution
Termination Event.
"Unmatured Purchase and Sale Termination Event" means any event which, with
the giving of notice or lapse of time, or both, would become a Purchase and Sale
Termination Event.
"Unmatured Termination Event" means an event that, with the giving of
notice or lapse of time, or both, would constitute a Termination Event.
"Yield Reserve" means, on any date, an amount equal to: (a) the sum of the
Capital plus the LC Participation Amount at the close of business of the Seller
on such date multiplied by (b) (i) the Yield Reserve Percentage on such date
divided by (ii) 100% minus the Yield Reserve Percentage on such date.
"Yield Reserve Percentage" means at any time:
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(BR+SFR) x l.5 x DSO
--------
360
where:
BR = the Base Rate computed for the most recent Settlement Period,
DSO = Days' Sales Outstanding, and
SFR = the Servicing Fee Rate
Other Terms. All accounting terms not specifically defined herein shall be
construed in accordance with generally accepted accounting principles. All terms
used in Article 9 of the UCC in the State of Illinois, and not specifically
defined herein, are used herein as defined in such Article 9. Unless the context
otherwise requires, "or" means "and/or," and "including" (and with correlative
meaning "include" and "includes") means including without limiting the
generality of any description preceding such term.
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EXHIBIT II
CONDITIONS OF PURCHASES
1. Conditions Precedent to Initial Purchase. The Initial Purchase under
this Agreement is subject to the following conditions precedent that the
Administrator shall have received on or before the date of such purchase, each
in form and substance (including the date thereof) satisfactory to the
Administrator:
(a) A counterpart of the Agreement and the other Transaction Documents
executed by the parties thereto.
(b) Certified copies of: (i) the resolutions of the Board of Directors of
each of the Seller, the Originators and Peabody authorizing the execution,
delivery and performance by the Seller, the Originators and Peabody, as the case
may be, of the Agreement and the other Transaction Documents to which it is a
party; (ii) all documents evidencing other necessary corporate or organizational
action and governmental approvals, if any, with respect to the Agreement and the
other Transaction Documents and (iii) the certificate of incorporation and
by-laws or limited liability company agreement, as applicable, of the Seller,
the Originators and Peabody.
(c) A certificate of the Secretary or Assistant Secretary of the Seller,
each of the Originators and Peabody certifying the names and true signatures of
its officers who are authorized to sign the Agreement and the other Transaction
Documents to which it is a party. Until the Administrator receives a subsequent
incumbency certificate from the Seller, the Originators or Peabody, as the case
may be, the Administrator shall be entitled to rely on the last such certificate
delivered to it by the Seller, the Originators or Peabody, as the case may be.
(d) Proper financing statements (Forms UCC-1 and UCC-3), duly executed on
or before the date of such initial purchase suitable for filing under the UCC of
all jurisdictions that the Administrator may deem necessary or desirable in
order to perfect the interests of the Seller and the Administrator (for the
benefit of the Purchasers) contemplated by the Agreement, the Contribution
Agreement and the Sale Agreement.
(e) Proper financing statements (Form UCC-3), duly executed and suitable
for filing under the UCC of all jurisdictions that the Administrator may deem,
if any, necessary or desirable to release all security interests and other
rights of any Person in the Receivables, Contracts or Related Security
previously granted by the Originators, Peabody or the Seller.
(f) [Intentionally Omitted].
(g) Favorable opinions, in form and substance reasonably satisfactory to
the Administrator, of: (i) Xxxxxxxx Xxxxxx, counsel for the Seller, the
Originators, and Peabody, and (ii) Xxxxxxx X. Xxxxxxx, General Counsel to the
Seller, the Originators and Peabody.
(h) [Intentionally Omitted].
(i) A pro forma Information Package representing the performance of the
Receivables Pool for the calendar month before closing.
II-1
(j) Evidence of payment by the Seller of all accrued and unpaid fees
(including those contemplated by the Fee Letter), costs and expenses to the
extent then due and payable on the date thereof, including any such costs, fees
and expenses arising under or referenced in Section 5.4 of the Agreement and the
Fee Letter.
(k) The Fee Letter duly executed by the Seller and the Servicer.
(l) Good standing certificates with respect to each of the Seller, the
Originators, and Peabody issued by the Secretary of State (or similar official)
of the state of each such Person's organization or formation and principal place
of business.
(m) The Liquidity Agreement and all other Transaction Documents duly
executed by the parties thereto.
(n) All information with respect to the Receivables as the Administrator or
the Purchasers may reasonably request.
(o) Such other approvals, opinions or documents as the Administrator or the
Purchasers may reasonably request.
2. Conditions Precedent to All Funded Purchases, Issuances of Letters of
Credit and Reinvestments. Each Funded Purchase (including the initial Funded
Purchase) and the issuance of any Letters of Credit and each reinvestment shall
be subject to the further conditions precedent that:
(a) in the case of each Funded Purchase and the issuance of any Letters of
Credit, the Servicer shall have delivered to the Administrator on or before such
purchase or issuance, as the case may be, in form and substance satisfactory to
the Administrator, a completed pro forma Information Package to reflect the
level of Capital, the LC Participation Amount and related reserves and the
calculation of the Purchased Interest after such subsequent purchase or
issuance, as the case may be, and a completed Purchase Notice in the form of
Annex B; and
(b) on the date of such Funded Purchase, issuance or reinvestment, as the
case may be, the following statements shall be true (and acceptance of the
proceeds of such Funded Purchase, issuance or reinvestment shall be deemed a
representation and warranty by the Seller that such statements are then true):
(i) the representations and warranties contained in Exhibit III to the
Agreement are true and correct in all material respects on and as of the
date of such Funded Purchase, issuance or reinvestment as though made on
and as of such date;
(ii) no event has occurred and is continuing, or would result from
such Funded Purchase, issuance or reinvestment, that constitutes a
Termination Event;
(iii) solely in the case of any purchase (but not reinvestment), no
Unmatured Termination Event shall exist and be continuing; and
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(iv) the sum of the Capital plus the LC Participation Amount, after
giving effect to any such Funded Purchase, issuance or reinvestment, as the
case may be, shall not exceed the Purchase Limit.
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EXHIBIT III
REPRESENTATIONS AND WARRANTIES
1. Representations and Warranties of the Seller. The Seller represents and
warrants as follows:
(a) The Seller is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of Delaware, and is
duly qualified to do business and is in good standing as a foreign limited
liability company in every jurisdiction where the nature of its business
requires it to be so qualified, except where the failure to be so qualified
would not have a Material Adverse Effect.
(b) The execution, delivery and performance by the Seller of the Agreement
and the other Transaction Documents to which it is a party, including its use of
the proceeds of purchases and reinvestments: (i) are within its organizational
powers; (ii) have been duly authorized by all necessary organizational action;
(iii) do not contravene or result in a default under or conflict with: (A) its
certificate of formation or any other organizational document of the Seller, (B)
any law, rule or regulation applicable to it, (C) any indenture, loan agreement,
mortgage, deed of trust or other material agreement or instrument to which it is
a party or by which it is bound, or (D) any order, writ, judgment, award,
injunction or decree binding on or affecting it or any of its property; and (iv)
do not result in or require the creation of any Adverse Claim upon or with
respect to any of its properties. The Agreement and the other Transaction
Documents to which it is a party have been duly executed and delivered by the
Seller.
(c) No authorization, approval or other action by, and no notice to or
filing with, any Governmental Authority or other Person is required for its due
execution, delivery and performance by the Seller of the Agreement or any other
Transaction Document to which it is a party, other than the Uniform Commercial
Code filings referred to in Exhibit II to the Agreement, all of which shall have
been filed on or before the date of the first purchase hereunder.
(d) Each of the Agreement and the other Transaction Documents to which the
Seller is a party constitutes its legal, valid and binding obligation
enforceable against the Seller in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization or other
similar laws from time to time in effect affecting the enforcement of creditors'
rights generally and by general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
(e) There is no pending or, to Seller's best knowledge, threatened action
or proceeding affecting Seller or any of its properties before any Governmental
Authority or arbitrator.
(f) No proceeds of any purchase or reinvestment will be used to acquire any
equity security of a class that is registered pursuant to Section 12 of the
Securities Exchange Act of 1934.
III-1
(g) The Seller is the legal and beneficial owner of, and has good and
marketable title to, the Pool Receivables, the Lock-Box Accounts (and related
lock-boxes) and Related Security, free and clear of any Adverse Claim. Upon each
purchase or reinvestment, the Administrator shall acquire a valid and
enforceable perfected undivided percentage ownership or security interest, to
the extent of the Purchased Interest, in each Pool Receivable then existing or
thereafter arising and in the Related Security, Collections and other proceeds
with respect thereto, free and clear of any Adverse Claim. The Agreement creates
a valid and continuing security interest (as defined in the applicable UCC) in
favor of the Administrator in the Pool Assets and the Lock-Box Accounts (and
related lock-boxes), which security interest is prior to all other Adverse
Claims, and is enforceable as such against creditors of and purchasers from the
Seller. The Pool Assets constitute "accounts", "general intangibles" or
"tangible chattel paper" within the meaning of the applicable UCC. Each Lock-Box
Account constitutes a "deposit account: within the meaning of the applicable
UCC. The Seller has caused or will have caused, within ten (10) days, the filing
of all appropriate UCC financing statements in the proper filing offices in the
appropriate jurisdictions under applicable laws in order to perfect the security
interest in the Pool Assets and the Lock-Box Accounts (and related lock-boxes)
granted to the Issuer hereunder. Other than the security interest granted to the
Issuer pursuant to this Agreement, Seller has not pledged, assigned, sold,
granted a security interest in, or otherwise conveyed any of the Pool Assets or
the Lock-Box Accounts (and related lock-boxes). Seller has not authorized the
filing of and is not aware of any UCC financing statements against Seller that
include a description of collateral covering the Pool Assets, other than any UCC
financing statement relating to the security interest granted to the
Administrator hereunder or that has been terminated. Seller is not aware of any
judgment, ERISA or tax lien filings against the Seller. With respect to any Pool
Receivable that constitutes "tangible chattel paper", the Servicer is in
possession of the original copies of the tangible chattel paper that constitutes
or evidences such Pool Receivables, and the Seller has filed or has caused to be
filed within ten (10) days after the date hereof the financing statements
described in this section above, each of which will contain a statement that "A
purchase of or a grant of a security interest in any property described in this
financing statement will violate the rights of the Administrator." The Pool
Receivables to the extent they are evidenced by "tangible chattel paper" do not
have any marks or notations indicating that they have been pledged, assigned or
otherwise conveyed to any Person other than the Seller or the Issuer.
(h) Each Information Package (if prepared by the Seller or one of its
Affiliates, or to the extent that information contained therein is supplied by
the Seller or one of its Affiliates), information, exhibit, financial statement,
document, book, record or report furnished or to be furnished at any time by or
on behalf of the Seller to the Administrator in connection with the Agreement or
any other Transaction Document to which it is a party is or will be complete and
accurate in all material respects as of its date or (except as otherwise
disclosed to the Administrator at such time) as of the date so furnished.
(i) The Seller's principal place of business, chief executive office and
state of formation (as such terms are used in the UCC) and the office where it
keeps its records concerning the Receivables are located at the address referred
to in Sections l(b) and 2(b) of Exhibit IV to the Agreement.
III-2
(j) The names and addresses of all the Lock-Box Banks, together with the
account numbers of the Lock-Box Accounts at such Lock-Box Banks, are specified
in Schedule II to the Agreement (or at such other Lock-Box Banks and/or with
such other Lock-Box Accounts as have been notified to the Administrator in
accordance with the Agreement) and all Lock-Box Accounts are subject to Lock-Box
Agreements. With respect to all Lock-Box Accounts (and related lock-boxes), the
Seller has delivered to the Administrator, on behalf of the Purchasers, a fully
executed Lock-Box Agreement pursuant to which the applicable Lock-Box Bank has
agreed, following the occurrence and continuation of a Termination Event, to
comply with all instructions given by the Administrator with respect to all
funds on deposit in such Lock-Box Account (and all funds sent to the respective
lock-box), without further consent by the Seller or the Servicer. None of the
Lock-Box Accounts (and the related lock-boxes) are in the name of any Person
other than the Seller or the Administrator (on behalf of the Purchasers). The
Seller has not consented to any Lock-Box Bank's complying with instructions of
any person other than the Administrator.
(k) The Seller is not in violation of any order of any court, arbitrator or
Governmental Authority.
(l) Neither the Seller nor any of its Affiliates has any direct or indirect
ownership or other financial interest in the Issuer.
(m) No proceeds of any purchase or reinvestment will be used for any
purpose that violates any applicable law, rule or regulation, including
Regulations T, U or X of the Federal Reserve Board.
(n) Each Pool Receivable included as an Eligible Receivable in the
calculation of the Net Receivables Pool Balance is an Eligible Receivable.
(o) No event has occurred and is continuing, or would result from a
purchase in respect of, or reinvestment in respect of, the Purchased Interest or
from the application of the proceeds therefrom, that constitutes a Termination
Event or an Unmatured Termination Event.
(p) The Seller has accounted for each sale of undivided percentage
ownership interests in Receivables in its books and financial statements as
sales, consistent with generally accepted accounting principles.
(q) The Seller has complied in all material respects with the Credit and
Collection Policies of the Originators with regard to each Receivable originated
by the Originators.
(r) The Seller has complied in all material respects with all of the terms,
covenants and agreements contained in the Agreement and the other Transaction
Documents that are applicable to it.
(s) The Seller's complete organizational name is set forth in the preamble
to the Agreement, and it does not use and has not during the last six years used
any other organizational name, trade name, doing-business name or fictitious
name, except as set forth on Schedule II to the Agreement and except for names
first used after the date of the Agreement and set forth in a
III-3
notice delivered to the Administrator pursuant to Section 1(1)(iv) of Exhibit IV
to the Agreement.
(t) The Seller is not an "investment company," or a company "controlled" by
an "investment company" within the meaning of the Investment Company Act of
1940, as amended. In addition, the Seller is not a "holding company," a
"subsidiary company" of a "holding company" or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company" within the meaning
of the Public Utility Holding Company Act of 1935, as amended.
2. Representations and Warranties of Peabody (including in its capacity as
the Servicer). Peabody, individually and in its capacity as the Servicer,
represents and warrants jointly and severally as follows:
(a) Peabody is a corporation duly formed, validly existing and in good
standing under the laws of the State of Delaware, and is duly qualified to do
business and is in good standing as a foreign corporation in every jurisdiction
where the nature of its business requires it to be so qualified, except where
the failure to be so qualified would not have a Material Adverse Effect.
(b) The execution, delivery and performance by Peabody of the Agreement and
the other Transaction Documents to which it is a party, including the Servicer's
use of the proceeds of purchases and reinvestments: (i) are within its
organizational powers; (ii) have been duly authorized by all necessary
organizational action; (iii) do not contravene or result in a default under or
conflict with: (A) its certificate of incorporation or any other organizational
document of Peabody, (B) any law, rule or regulation applicable to it, (C) any
indenture, loan agreement, mortgage, deed of trust or other material agreement
or instrument to which it is a party or by which it is bound, or (D) any order,
writ, judgment, award, injunction or decree binding on or affecting it or any of
its property; and (iv) do not result in or require the creation of any Adverse
Claim upon or with respect to any of its properties. The Agreement and the other
Transaction Documents to which Peabody is a party have been duly executed and
delivered by Peabody.
(c) No authorization, approval or other action by, and no notice to or
filing with any Governmental Authority or other Person, is required for the due
execution, delivery and performance by Peabody of the Agreement or any other
Transaction Document to which it is a party.
(d) Each of the Agreement and the other Transaction Documents to which
Peabody is a party constitutes the legal, valid and binding obligation of
Peabody enforceable against Peabody in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization or other
similar laws from time to time in effect affecting the enforcement of creditors'
rights generally and by general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
(e) The balance sheets of Peabody and its consolidated Subsidiaries as at
December 31, 2004, and the related statements of income and retained earnings
for the fiscal year then ended, copies of which have been furnished to the
Administrator, fairly present in all
III-4
material respects the financial condition of Peabody and its consolidated
Subsidiaries as at such date and the results of the operations of Peabody and
its Subsidiaries for the period ended on such date, all in accordance with
generally accepted accounting principles consistently applied, and since
December 31, 2004 there has been no event or circumstances which have had a
Material Adverse Effect.
(f) Except as disclosed in the most recent audited financial statements of
Peabody furnished to the Administrator, there is no pending or, to its best
knowledge, threatened action or proceeding affecting it or any of its
Subsidiaries before any Governmental Authority or arbitrator that is reasonably
likely to have a Material Adverse Effect.
(g) No proceeds of any purchase or reinvestment will be used to acquire any
equity security of a class that is registered pursuant to Section 12 of the
Securities Exchange Act of 1934. No proceeds of any purchase or reinvestment
will be used for any purpose that violates any applicable law, rule or
regulation, including Regulations T, U or X of the Federal Reserve Board.
(h) Each Information Package (if prepared by Peabody or one of its
Affiliates, or to the extent that information contained therein is supplied by
Peabody or an Affiliate), information, exhibit, financial statement, document,
book, record or report furnished or to be furnished at any time by or on behalf
of the Servicer to the Administrator in connection with the Agreement is or will
be complete and accurate in all material respects as of its date or (except as
otherwise disclosed to the Administrator at such time) as of the date so
furnished.
(i) The principal place of business, chief executive office and state of
formation (as such terms are used in the UCC) of Peabody and the office where it
keeps its records concerning the Receivables are located at the address referred
to in Section 2(b) of Exhibit IV to the Agreement.
(j) Peabody is not in violation of any order of any court, arbitrator or
Governmental Authority, which is reasonably likely to have a Material Adverse
Effect.
(k) Neither Peabody nor any of its Affiliates has any direct or indirect
ownership or other financial interest in the Issuer.
(l) The Servicer has complied in all material respects with the Credit and
Collection Policy of the Originators with regard to each Receivable originated
by the Originators.
(m) Peabody has complied in all material respects with all of the terms,
covenants and agreements contained in the Agreement and the other Transaction
Documents that are applicable to it.
(n) Peabody is not an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended. In addition, Peabody is not a "holding company," a "subsidiary
company" of a "holding company," or an "affiliate" of a "holding company" or of
a "subsidiary company" of a
III-5
"holding company" within the meaning of the Public Utility Holding Company Act
of 1935, as amended.
(o) The agreement among the project participants of the Mohave Project
requires that upon the default of any participant, the non-defaulting
participants are required to cure any such default.
(p) The agreement among the project participants of the Navajo Project
requires that upon the default of any participant, the non-defaulting
participants are required to cure any such default.
III-6
EXHIBIT IV
COVENANTS
1. Covenants of the Seller. Until the latest of the Facility Termination
Date, the date on which no Capital of or Discount in respect of the Purchased
Interest shall be outstanding, the date the LC Participation Amount is cash
collateralized in full or the date all other amounts owed by the Seller under
the Agreement to each Purchaser, the Administrator and any other Indemnified
Party or Affected Person shall be paid in full:
(a) Compliance with Laws, Etc. The Seller shall comply in all material
respects with all applicable laws, rules, regulations and orders, and preserve
and maintain its organizational existence, rights, franchises, qualifications
and privileges, except to the extent that the failure so to comply with such
laws, rules, regulations and orders or the failure so to preserve and maintain
such rights, franchises, qualifications and privileges would not have a Material
Adverse Effect.
(b) Offices, Records and Books of Account, Etc. The Seller: (i) shall keep
its principal place of business, chief executive office and state of formation
(as such terms or similar terms are used in the UCC) and the office where it
keeps its records concerning the Receivables at the address of the Seller set
forth on Schedule IV or, pursuant to clause (1)(iv) below, at any other
locations in jurisdictions where all actions reasonably requested by the
Administrator to protect and perfect the interest of the Administrator in the
Receivables and related items (including the Pool Assets) have been taken and
completed and (ii) shall provide the Administrator with at least 30 days'
written notice before making any change in the Seller's name or making any other
change in the Seller's identity or organizational structure (including a Change
in Control) that could render any UCC financing statement filed in connection
with this Agreement "seriously misleading" as such term (or similar term) is
used in the UCC; each notice to the Administrator pursuant to this sentence
shall set forth the applicable change and the effective date thereof. The Seller
also will maintain and implement (or cause the Servicer to maintain and
implement) administrative and operating procedures (including an ability to
recreate records evidencing Receivables and related Contracts in the event of
the destruction of the originals thereof), and keep and maintain (or cause the
Servicer to keep and maintain) all documents, books, records, computer tapes and
disks and other information reasonably necessary or advisable for the collection
of all Receivables (including records adequate to permit the daily
identification of each Receivable and all Collections of and adjustments to each
existing Receivable). Notwithstanding the above, in no event shall the Seller
have or maintain, or be a partner in any partnership that has or maintains, its
jurisdiction of organization, principal place of business or principal assets in
any of the states of Colorado, Kansas, New Mexico, Oklahoma, Utah or Wyoming.
(c) Performance and Compliance with Contracts and Credit and Collection
Policy. The Seller shall (and shall cause the Servicer to), at its expense,
timely and fully perform and comply with all material provisions, covenants and
other promises required to be observed by it under the Contracts related to the
Receivables, and timely and fully comply in all material respects with the
applicable Credit and Collection Policies with regard to each Receivable and the
related Contract.
IV-1
(d) Ownership Interest, Etc. The Seller shall (and shall cause the Servicer
to), at its expense, take all action necessary or desirable to establish and
maintain a valid and enforceable undivided percentage ownership or security
interest, to the extent of the Purchased Interest, in the Pool Receivables, the
Related Security and Collections with respect thereto, and a first priority
perfected security interest in the Pool Assets, in each case free and clear of
any Adverse Claim, in favor of the Administrator (on behalf of the Purchasers),
including taking such action to perfect, protect or more fully evidence the
interest of the Administrator (on behalf of the Purchasers), as the
Administrator, may reasonably request. The Seller shall from time to time and
within the time limits established by law prepare and present to the
Administrator for the Administrator's authorization and approval all financing
statements, amendments, continuations or initial financing statements in lieu of
a continuation statement, or other filings necessary to continue, maintain and
perfect the Administrator (on behalf of the Purchasers) security interest in the
Pool Assets as a first-priority interest. The Administrator's approval of such
filings shall authorize the Seller to file such financing statements under the
UCC without the signature of the Seller, or the Issuer, the Administrator or any
Purchaser where allowed by applicable law. Notwithstanding anything else in the
Transaction Documents to the contrary, neither the Seller, the Servicer nor any
other Person shall have any authority to file a termination, partial
termination, release or partial release or any amendment that deletes the name
of a debtor or excludes collateral of any such financing statements without the
prior written consent of the Administrator.
(e) Sales, Liens, Etc. The Seller shall not sell, assign (by operation of
law or otherwise) or otherwise dispose of, or create or suffer to exist any
Adverse Claim upon or with respect to, any or all of its right, title or
interest in, to or under any Pool Assets (including the Seller's undivided
interest in any Receivable, Related Security or Collections, or upon or with
respect to any account to which any Collections of any Receivables are sent), or
assign any right to receive income in respect of any items contemplated by this
paragraph.
(f) Extension or Amendment of Receivables. Except as provided in the
Agreement, the Seller shall not, and shall not permit the Servicer to, alter the
delinquency status or adjust the Outstanding Balance or otherwise modify the
terms of any Pool Receivable in any material respect, or amend, modify or waive,
in any material respect, any term or condition of any related Contract (which
term or condition relates to payments under, or the enforcement of, such
Contract).
(g) Change in Business or Credit and Collection Policy. Without the prior
written consent of the Administrator, the Seller shall not make (or permit the
Originators to make) any material change in the character of its business or in
any Credit and Collection Policy, or any change in any Credit and Collection
Policy that would have a Material Adverse Effect with respect to the
Receivables. The Seller shall not make (or permit the Originators to make) any
other change in any Credit and Collection Policy without giving 30 days' prior
written notice thereof to the Administrator.
(h) Audits. The Seller shall (and shall cause the Originators to), from
time to time during regular business hours as reasonably requested in advance
(unless a Termination Event or Unmatured Termination Event exists) by the
Administrator, permit the Administrator, or its
IV-2
agents or representatives: (i) to examine and make copies of and abstracts from
all books, records and documents (including computer tapes and disks) in the
possession or under the control of the Seller (or the Originators) relating to
Receivables and the Related Security, including the related Contracts, (ii) to
visit the offices and properties of the Seller and the Originators for the
purpose of examining such materials described in clause (i) above, and to
discuss matters relating to Receivables and the Related Security or the
Seller's, Peabody's or any Originator's performance under the Transaction
Documents or under the Contracts with any of the officers, employees, agents or
contractors of the Seller, Peabody or any Originator having knowledge of such
matters and (iii) without limiting the clauses (i) and (ii) above, to engage
certified public accountants or other auditors acceptable to the Seller and the
Administrator to conduct, at the Seller's expense, a review of the Seller's
books and records with respect to such Receivables, provided, that at any time
when no Termination Event exists and is continuing, the Seller shall be required
to reimburse the Administrator for only one (1) such audit per year.
(i) Change in Lock-Box Banks, Lock-Box Accounts and Payment Instructions to
Obligors. The Seller shall not, and shall not permit the Servicer or any
Originator to, add or terminate any bank as a Lock-Box Bank or any account as a
Lock-Box Account from those listed in Schedule II to the Agreement, or make any
change in its instructions to Obligors regarding payments to be made to the
Seller, any Originator, the Servicer or any Lock-Box Account (or related post
office box), unless the Administrator shall have received ten (10) days prior
written notice of assignment to a Permitted Lock-Box Bank and the Administrator
shall have received copies of all agreements and documents (including Lock-Box
Agreements) that it may request in connection therewith.
(j) Deposits to Lock-Box Accounts. The Seller shall (or shall cause the
Servicer to): (i) instruct all Obligors to make payments of all Receivables to
one or more Lock-Box Accounts or to post office boxes to which only Lock-Box
Banks have access (and shall instruct the Lock-Box Banks to cause all items and
amounts relating to such Receivables received in such post office boxes to be
removed and deposited into a Lock-Box Account on a daily basis), and (ii)
deposit, or cause to be deposited, any Collections received by it, the Servicer
or any Originator into Lock-Box Accounts not later than two (2) Business Days
after receipt thereof. Each Lock-Box Account shall at all times be subject to a
Lock-Box Agreement. The Seller will not (and will not permit the Servicer to)
deposit or otherwise credit, or cause or permit to be so deposited or credited,
to any Lock-Box Account cash or cash proceeds other than Collections.
(k) Marking of Records. At its expense, the Seller shall: (i) xxxx (or
cause the Servicer to xxxx) its master data processing records relating to Pool
Receivables and related Contracts, including with a legend evidencing that the
undivided percentage ownership interests with regard to the Purchased Interest
related to such Receivables and related Contracts have been sold in accordance
with the Agreement, and (ii) cause each Originator so to xxxx its master data
processing records pursuant to the Sale Agreement.
IV-3
(l) Reporting Requirements. The Seller will provide to the Administrator
(in multiple copies, if requested by the Administrator) the following:
(i) as soon as available and in any event within 120 days after the
end of each fiscal year of the Seller, a copy of the financial statements
for such year for the Seller, certified as to accuracy by the chief
financial officer or treasurer of the Seller;
(ii) as soon as possible and in any event within five days after the
occurrence of each Termination Event or Unmatured Termination Event, a
statement of the chief financial officer of the Seller setting forth
details of such Termination Event or Unmatured Termination Event and the
action that the Seller has taken and proposes to take with respect thereto;
(iii) promptly after the filing or receiving thereof, copies of all
reports and notices that the Seller or any Affiliate files under ERISA with
the Internal Revenue Service, the Pension Benefit Guaranty Corporation or
the U.S. Department of Labor or that the Seller or any Affiliate receives
from any of the foregoing or from any multiemployer plan (within the
meaning of Section 400l(a)(3) of ERISA) to which the Seller or any of its
Affiliates is or was, within the preceding five years, a contributing
employer, in each case in respect of the assessment of withdrawal liability
or an event or condition that could, in the aggregate, result in the
imposition of liability on the Seller and/or any such Affiliate;
(iv) at least thirty days before any change in the Seller's name or
any other change requiring the amendment of UCC financing statements, a
notice setting forth such changes and the effective date thereof;
(v) promptly after any Responsible Officer of the Seller obtains
knowledge thereof, notice of any: (A) material litigation, investigation or
proceeding that may exist at any time between the Seller and any Person or
(B) material litigation or proceeding relating to any Transaction Document;
(vi) promptly after the occurrence thereof, notice of a material
adverse change in the business, operations, property or financial or other
condition of the Seller, the Servicer or the Originator; and
(vii) such other information respecting the Receivables or the
condition or operations, financial or otherwise, of the Seller or any of
its Affiliates as the Administrator may from time to time reasonably
request.
(m) Certain Agreements. Without the prior written consent of the
Administrator, the Seller will not (and will not permit the Originators to)
amend, modify, waive, revoke or terminate any Transaction Document to which it
is a party or any provision of Seller's certificate of incorporation or other
organizational document of the Seller.
(n) Restricted Payments. (i) Except pursuant to clause (ii) below, the
Seller will not: (A) purchase or redeem any shares of its capital stock, (B)
declare or pay any dividend or set
IV-4
aside any funds for any such purpose, (C) prepay, purchase or redeem any Debt,
(D) lend or advance any funds or (E) repay any loans or advances to, for or from
any of its Affiliates (the amounts described in clauses (A) through (E) being
referred to as "Restricted Payments").
(ii) Subject to the limitations set forth in clause (iii) below, the
Seller may make Restricted Payments so long as such Restricted Payments are
made only in the following way: the Seller may declare and pay
distributions and make loans and advances to Peabody (provided that any
such loans and advances shall be treated as a dividend within no less than
30 days following the making thereof).
(iii) The Seller may make Restricted Payments only out of the funds it
receives pursuant to Sections 1.4(b)(ii) and (iv) and 1.4(d) of the
Agreement. Furthermore, the Seller shall not pay, make or declare: (A) any
distributions, loans or advances if, after giving effect thereto, the
Seller's tangible net worth would be less than $10,000,000, or (B) any
Restricted Payment (including any dividend) if, after giving effect
thereto, any Termination Event or Unmatured Termination Event shall have
occurred and be continuing.
(o) Other Business. The Seller will not: (i) engage in any business other
than the transactions contemplated by the Transaction Documents; (ii) create,
incur or permit to exist any Debt of any kind (or cause or permit to be issued
for its account any letters of credit or bankers' acceptances) other than
pursuant to this Agreement or any Company Note; or (iii) form any Subsidiary or
make any investments in any other Person; provided, however, that the Seller
shall be permitted to incur minimal obligations to the extent necessary for the
day-to-day operations of the Seller (such as expenses for stationery, audits,
maintenance of legal status, etc.).
(p) Use of Seller's Share of Collections. The Seller shall apply the
Seller's Share of Collections to make payments in the following order of
priority: (i) the payment of its expenses (including all obligations payable to
the Issuer and the Administrator under the Agreement and under the Fee Letter);
(ii) the payment of accrued and unpaid interest on any Company Note; and (iii)
other legal and valid organizational purposes.
(q) Tangible Net Worth. The Seller will not permit its tangible net worth,
at any time, to be less than $10,000,000.
2. Covenants of the Servicer and Peabody. Until the latest of the Facility
Termination Date, the date on which no Capital of or Discount in respect of the
Purchased Interest shall be outstanding, the date the LC Participation Amount is
cash collateralized in full or the date all other amounts owed by the Seller
under the Agreement to each Purchaser, the Administrator and any other
Indemnified Party or Affected Person shall be paid in full:
(a) Compliance with Laws, Etc. The Servicer and, to the extent that it
ceases to be the Servicer, Peabody shall comply (and shall cause the Originators
to comply) in all material respects with all applicable laws, rules, regulations
and orders, and preserve and maintain its organizational existence, rights,
franchises, qualifications and privileges, except to the extent that the failure
so to comply with such laws, rules and regulations or the failure so to preserve
and
IV-5
maintain such existence, rights, franchises, qualifications and privileges would
not have a Material Adverse Effect.
(b) Offices, Records and Books of Account, Etc. The Servicer and, to the
extent that it ceases to be the Servicer, Peabody, shall keep (and shall cause
the Originators to keep) its principal place of business, chief executive office
and state of formation (as such terms or similar terms are used in the
applicable UCC) and the office where it keeps its records concerning the
Receivables at the address of the Servicer set forth on Schedule IV or, upon at
least 30 days' prior written notice of a proposed change to the Administrator,
at any other locations in jurisdictions where all actions reasonably requested
by the Administrator to protect and perfect the interest of the Administrator in
the Receivables and related items (including the Pool Assets) have been taken
and completed. The Servicer and, to the extent that it ceases to be the
Servicer, Peabody, also will (and will cause the Originators to) maintain and
implement administrative and operating procedures (including an ability to
recreate records evidencing Receivables and related Contracts in the event of
the destruction of the originals thereof), and keep and maintain all documents,
books, records, computer tapes and disks and other information reasonably
necessary or advisable for the collection of all Receivables (including records
adequate to permit the daily identification of each Receivable and all
Collections of and adjustments to each existing Receivable).
(c) Performance and Compliance with Contracts and Credit and Collection
Policy. The Servicer and, to the extent that it ceases to be the Servicer,
Peabody, shall (and shall cause the Originators to), at its expense, timely and
fully perform and comply with all material provisions, covenants and other
promises required to be observed by it under the Contracts related to the
Receivables, and timely and fully comply in all material respects with the
Credit and Collection Policy with regard to each Receivable and the related
Contract.
(d) Extension or Amendment of Receivables. Except as provided in the
Agreement, the Servicer and, to the extent that it ceases to be the Servicer,
Peabody, shall not alter the delinquency status or adjust the Outstanding
Balance or otherwise modify the terms of any Pool Receivable in any material
respect, or amend, modify or waive, in any material respect, any term or
condition of any related Contract (which term or condition relates to payments
under, or the enforcement of, such Contract).
(e) Change in Business or Credit and Collection Policy. The Servicer and,
to the extent that it ceases to be the Servicer, Peabody, shall not make (and
shall not permit the Originators to make) any material change in the character
of its business, other than Similar Businesses, or any change in any Credit and
Collection Policy that would have a Material Adverse Effect. The Servicer and,
to the extent that it ceases to be the Servicer, Peabody, shall not make (and
shall not permit the Originators to make) any other change in any Credit and
Collection Policy without giving prior written notice thereof to the
Administrator.
(f) Audits. The Servicer and, to the extent that it ceases to be the
Servicer, Peabody, shall (and shall cause the Originators to), from time to time
during regular business hours as reasonably requested in advance (unless a
Termination Event or Unmatured Termination Event exists) by the Administrator,
permit the Administrator, or its agents or representatives: (i) to
IV-6
examine and make copies of and abstracts from all books, records and documents
(including computer tapes and disks) in its possession or under its control
relating to Receivables and the Related Security, including the related
Contracts; (ii) to visit its offices and properties for the purpose of examining
such materials described in clause (i) above, and to discuss matters relating to
Receivables and the Related Security or its performance hereunder or under the
Contracts with any of its officers, employees, agents or contractors having
knowledge of such matters and (iii), without limiting the clauses (i) and (ii)
above, to engage certified public accountants or other auditors acceptable to
the Servicer and the Administrator to conduct, at the Servicer's expense, a
review of the Servicer's books and records with respect to such Receivables,
provided, that at any time when no Termination Event exists and is continuing,
the Servicer shall be required to reimburse the Administrator for only one (1)
such audit per year.
(g) Change in Lock-Box Banks, Lock-Box Accounts and Payment Instructions to
Obligors. The Servicer and, to the extent that it ceases to be the Servicer,
Peabody, shall not (and shall not permit the Originators to) add or terminate
any bank as a Lock-Box Bank or any account as a Lock-Box Account from those
listed in Schedule II to the Agreement, or make any change in its instructions
to Obligors regarding payments to be made to the Servicer or any Lock-Box
Account (or related post office box), unless the Administrator shall have
received ten (10) days advance written notice of assignment to a Permitted
Lock-Box Bank and the Administrator shall have received copies of all agreements
and documents (including Lock-Box Agreements) that it may request in connection
therewith.
(h) Deposits to Lock-Box Accounts. The Servicer shall: (i) instruct all
Obligors to make payments of all Receivables to one or more Lock-Box Accounts or
to post office boxes to which only Lock-Box Banks have access (and shall
instruct the Lock-Box Banks to cause all items and amounts relating to such
Receivables received in such post office boxes to be removed and deposited into
a Lock-Box Account on a daily basis); and (ii) deposit, or cause to be
deposited, any Collections received by it into Lock-Box Accounts not later than
two (2) Business Days after receipt thereof. Each Lock-Box Account shall at all
times be subject to a Lock-Box Agreement.
(i) Preservation of Security Interest. The Servicer shall (and shall cause
the Seller to) take any and all action as the Administrator may require to
preserve and maintain the perfection and priority of the security interest of
the Administrator in the Pool Assets pursuant to this Agreement.
(j) Marking of Records. At its expense, the Servicer shall xxxx its master
data processing records relating to Pool Receivables and related Contracts with
a legend evidencing that the undivided percentage ownership interests with
regard to the Purchased Interest related to such Receivables and related
Contracts have been sold in accordance with the Agreement.
(k) Mohave Project and Navajo Project. Peabody shall notify the
Administrator if (1) a Responsible Officer of Peabody obtains actual knowledge
that the documents and agreements governing the Mohave Project are amended in
any manner which would cause the representations and warranties set forth in
Section 2(o) to be incorrect or untrue in any respect, or (2) a Responsible
Officer of Peabody obtains actual knowledge that the documents and
IV-7
agreements governing the Navajo Project are amended in any manner which would
cause the representations and warranties set forth in Section 2(p) to be
incorrect or untrue in any respect.
(l) Reporting Requirements. Peabody shall provide to the Administrator (in
multiple copies, if requested by the Administrator) the following:
(i) as soon as available and in any event within 60 days after the end
of the first three quarters of each fiscal year of Peabody balance sheets
of Peabody and the consolidated Subsidiaries of Peabody as of the end of
such quarter and statements of income, retained earnings and cash flow of
Peabody and the consolidated Subsidiaries of Peabody for the period
commencing at the end of the previous fiscal year and ending with the end
of such quarter, certified by the chief financial officer of Peabody;
(ii) as soon as available and in any event within 120 days after the
end of each fiscal year of Peabody, a copy of the annual report for such
year for Peabody and its consolidated Subsidiaries, containing financial
statements for such year audited by independent certified public
accountants of nationally recognized standing;
(iii) together with the financial statements required in (i) and (ii)
above, (A) a compliance certificate in substantially the form of Annex D
signed by the senior financial officer of the Seller or Peabody, or such
other Person as may be acceptable to the Administrator and (B) a Total
Leverage Certificate signed by a senior financial officer of Peabody or
such other Person as may be acceptable to the Administrator;
(iv) as to the Servicer only, as soon as available and in any event
not later than two Business Days prior to the Monthly Settlement Date, an
Information Package as of the most recently completed calendar month or, if
in the opinion of the Administrator reasonable grounds for insecurity exist
with respect to the collectibility of the Pool Receivables or with respect
to the Seller or Servicer's performance or ability to perform its
obligations under the Agreement, within six Business Days of a request by
the Administrator, an Information Package for such periods as is specified
by the Administrator (but in no event more frequently than weekly);
(v) as soon as possible and in any event within five days after
becoming aware of the occurrence of each Termination Event or Unmatured
Termination Event, a statement of the chief financial officer of Peabody
setting forth details of such Termination Event or Unmatured Termination
Event and the action that such Person has taken and proposes to take with
respect thereto;
(vi) promptly after the sending or filing thereof, copies of all
reports that Peabody sends to any of its security holders, and copies of
all reports and registration statements that Peabody, or any Subsidiary
files with the Securities and Exchange Commission or any national
securities exchange; provided, that any filings with the Securities and
Exchange Commission that have been granted "confidential" treatment shall
be provided promptly after such filings have become publicly available;
IV-8
(vii) promptly after the filing or receiving thereof notice of and,
upon the request of the Administrator, copies of all reports and notices
that Peabody or any Affiliate of Peabody files under ERISA with the
Internal Revenue Service, the Pension Benefit Guaranty Corporation or the
U.S. Department of Labor or that such Person or any of its Affiliates
receives from any of the foregoing or from any multiemployer plan (within
the meaning of Section 4001(a)(3) of ERISA) to which such Person or any
Affiliate of Peabody is or was, within the preceding five years, a
contributing employer, in each case in respect of the assessment of
withdrawal liability or an event or condition that could, in the aggregate,
result in the imposition of liability on Peabody and/or any such Affiliate;
(viii) at least thirty days before any change in Peabody or any
Originator's name or any other change requiring the amendment of UCC
financing statements, a notice setting forth such changes and the effective
date thereof;
(ix) promptly after a Responsible Officer of Peabody obtains knowledge
thereof, notice of any: (A) litigation, investigation or proceeding that
may exist at any time between Peabody or any of its Subsidiaries and any
Governmental Authority that is reasonably likely to have a Material Adverse
Effect; (B) litigation or proceeding adversely affecting such Person or any
of its Subsidiaries in which the amount involved is $25,000,000 or more
after deducting (x) the amount with respect to which such Person or any
such Subsidiary is insured and with respect to which the insurer has
assumed responsibility in writing, and (y) the amount for which such Person
or any such Subsidiary is otherwise indemnified if the terms of
indemnification are satisfactory to the Administrator or in which
injunctive or similar relief is sought; or (C) litigation or proceeding
relating to any Transaction Document;
(x) promptly after the occurrence thereof, notice of a material
adverse change in the business, operations, property or financial or other
condition of Peabody and its Subsidiaries taken as a whole, or any
individual Material Originator;
(xi) the occurrence of a default or any event of default under any
other financing arrangement evidencing $25,000,000 or more of indebtedness
pursuant to which Peabody is a debtor or an obligor; and
(xii) such other information respecting the Receivables or the
condition or operations, financial or otherwise, of Peabody or any of its
Affiliates as the Administrator may from time to time reasonably request.
3. Separate Existence. Each of the Seller and Peabody hereby acknowledges
that the Purchasers, the Issuer and the Administrator are entering into the
transactions contemplated by this Agreement and the other Transaction Documents
in reliance upon the Seller's identity as a legal entity separate from Peabody
and its Affiliates. Therefore, from and after the date hereof, each of the
Seller and Peabody shall take all steps specifically required by the Agreement
or reasonably required by the Administrator to continue the Seller's identity as
a separate legal
IV-9
entity and to make it apparent to third Persons that the Seller is an entity
with assets and liabilities distinct from those of Peabody and any other Person,
and is not a division of Peabody, its Affiliates or any other Person. Without
limiting the generality of the foregoing and in addition to and consistent with
the other covenants set forth herein, each of the Seller and Peabody shall take
such actions as shall be required in order that:
(a) The Seller will be a limited purpose limited liability company whose
activities are restricted in its certificate of formation to: (i) purchasing or
otherwise acquiring from the Originators or Peabody (or their Affiliates),
owning, holding, granting security interests or selling interests in Pool Assets
(or other receivables originated by the Originators or their Affiliates, and
certain related assets), (ii) entering into agreements for the selling and
servicing of the Receivables Pool (or other receivables pools originated by the
Originators or their Affiliates), and (iii) conducting such other activities as
are necessary or appropriate to carry out such activities;
(b) The Seller shall not engage in any business or activity except as set
forth in this Agreement nor incur any indebtedness or liability, other than as
expressly permitted by the Transaction Documents;
(c) Not less than one of the Seller's Directors (the "Independent
Director") shall be an individual who is not and has not been, within the
preceding five (5) years, a direct, indirect or beneficial stockholder, officer,
director, employee, affiliate, associate, customer, creditor, consultant or
supplier of Peabody or any of its Affiliates. The LLC Agreement shall provide
that: (i) the Seller's Board of Directors shall not approve, or take any other
action to cause the filing of, or join in any filing of, a voluntary bankruptcy
or insolvency petition, dissolution, liquidation, consolidation, merger, sale of
all or substantially all of its assets, assignment for the benefit of creditors,
admit in writing its inability to pay its debts generally as they become due, or
to engage in any other business or activity with respect to the Seller unless
the Independent Director shall approve the taking of such action in writing
before the taking of such action, and (ii) neither such provision nor the
certificate of formation can be amended without the prior written consent of the
Independent Director;
(d) Upon the occurrence of any event that causes the Member to cease to be
a member of the Seller (other than (i) upon an assignment by the Member of all
of its limited liability company interest in the Seller and the admission of the
transferee pursuant to Sections 21 and 23 of the LLC Agreement, or (ii) the
resignation of the Member and the admission of an additional member of the
Seller pursuant to Sections 22 and 23 of the LLC Agreement), each person acting
as an Independent Director pursuant to Section 10 of the LLC Agreement shall,
without any action of any Person and simultaneously with the Member ceasing to
be a member of the Seller, automatically be admitted to the Seller as a Special
Member and shall continue the Seller without dissolution. No Special Member may
resign from the Seller or transfer its rights as a Special Member unless (i) a
successor Special Member has been admitted to the Seller as Special Member by
executing a counterpart to the LLC Agreement, and (ii) such successor has also
accepted its appointment as Independent Director pursuant to Section 10 of the
LLC Agreement; provided, however, the Special Members shall automatically cease
to be members of the Seller upon the admission to the Seller of a substitute
Member.
IV-10
(e) The Independent Director shall not at any time serve as a trustee in
bankruptcy for the Seller, Peabody or any Affiliate thereof;
(f) Any employee, consultant or agent of the Seller will be compensated
from the Seller's funds for services provided to the Seller. The Seller will not
engage any agents other than its attorneys, auditors and other professionals,
and a servicer and any other agent contemplated by the Transaction Documents for
the Receivables Pool, which servicer will be fully compensated for its services
by payment of the Servicing Fee, and a manager, which manager will be fully
compensated from the Seller's funds;
(g) The Seller will contract with the Servicer to perform for the Seller
all operations required on a daily basis to service the Receivables Pool. The
Seller will pay the Servicer the Servicing Fee pursuant hereto. The Seller will
not incur any material indirect or overhead expenses for items shared with
Peabody (or any other Affiliate thereof) that are not reflected in the Servicing
Fee. To the extent, if any, that the Seller (or any Affiliate thereof) shares
items of expenses not reflected in the Servicing Fee or the manager's fee, such
as legal, auditing and other professional services, such expenses will be
allocated to the extent practical on the basis of actual use or the value of
services rendered, and otherwise on a basis reasonably related to the actual use
or the value of services rendered; it being understood that Peabody shall pay
all expenses relating to the preparation, negotiation, execution and delivery of
the Transaction Documents, including legal, agency and other fees;
(h) The Seller's operating expenses will be paid by the Seller and not by
Peabody or any other Affiliate thereof;
(i) All of the Seller's business correspondence and other communications
shall be conducted in the Seller's own name and on its own separate stationery;
(j) The Seller's books and records will be maintained separately from those
of Peabody and any other Affiliate thereof and any other Person;
(k) All financial statements of Peabody or any Affiliate thereof that are
consolidated to include Seller will contain detailed notes clearly stating that:
(i) a special purpose limited liability company exists as a Subsidiary of
Peabody, and (ii) the Originators have sold receivables and other related assets
to the Contributor, which has contributed such receivables and other related
assets to such special purpose Subsidiary that, in turn, has sold undivided
interests therein to certain financial institutions and other entities;
(l) The Seller's assets will be maintained in a manner that facilitates
their identification and segregation from those of Peabody or any Affiliate
thereof and any other Person;
(m) The Seller will strictly observe organizational formalities in its
dealings with Peabody or any Affiliate thereof, and funds or other assets of the
Seller will not be commingled with those of Peabody or any Affiliate thereof
except as permitted by the Agreement in connection with servicing the Pool
Receivables. The Seller shall not maintain joint bank accounts or other
depository accounts to which Peabody or any Affiliate thereof or any other
IV-11
Person has independent access, and the Seller shall use separate invoices and
checks from any other Person. The Seller is not named, and has not entered into
any agreement to be named, directly or indirectly, as a direct or contingent
beneficiary or loss payee on any insurance policy with respect to any loss
relating to the property of Peabody or any Subsidiary or other Affiliate of
Peabody (other than the Seller) The Seller will pay to the appropriate Affiliate
the marginal increase or, in the absence of such increase, the market amount of
its portion of the premium payable with respect to any insurance policy that
covers the Seller and such Affiliate;
(n) The Seller will maintain arm's-length relationships with Peabody (and
any Affiliate thereof). Any Person that renders or otherwise furnishes services
to the Seller will be compensated by the Seller at market rates for such
services it renders or otherwise furnishes to the Seller. Neither the Seller nor
Peabody will be or will hold itself out to be responsible for the debts of the
other or the decisions or actions respecting the daily business and affairs of
the other. The Seller and Peabody will immediately correct any known
misrepresentation with respect to the foregoing, and they will not operate or
purport to operate as an integrated single economic unit with respect to each
other or in their dealing with any other entity;
(o) Peabody shall not pay the salaries of Seller's employees, if any;
(p) The Seller does not and will not hold itself responsible for the
obligations of any other Person, and shall not guarantee or become liable for
the debts of any other Person;
(q) The Seller will conduct its business in its own name and shall hold
itself out as a separate entity from any other Person;
(r) The Seller shall maintain a sufficient number of employees and adequate
capital in light of its contemplated business activities;
(s) The Seller shall not acquire the obligations or securities of any of
its members; and
(t) The Seller shall not pledge its assets for the benefit of any other
Person or make any loans or advances to any other Person, except pursuant to the
Transaction Documents.
IV-12
EXHIBIT V
TERMINATION EVENTS
Each of the following shall be a "Termination Event":
(a) (i) the Seller, Peabody, any Originator or the Servicer (if Peabody or
any of its Affiliates) shall fail to perform or observe any term, covenant or
agreement under the Agreement (other than those terms, covenants or agreements
contained in Exhibit IV, Sections 1(a), 1(l) (except clause (iv) thereof), 2(a),
and 2(l) (except clause (viii) thereof)) or any other Transaction Document and,
except as otherwise provided herein, such failure shall continue for five
consecutive Business Days after knowledge or notice thereof, (ii) the Seller or
the Servicer shall fail to make when due any payment or deposit to be made by it
under the Agreement and such failure shall continue unremedied for one Business
Day, (iii) Peabody shall resign as Servicer, and no successor Servicer
reasonably satisfactory, to the Administrator shall have been appointed, or (iv)
the Seller, Peabody, any Originator or the Servicer (if Peabody or any of its
Affiliates) shall fail to perform or observe any term covenant or agreement in
any of Exhibit IV, Sections 1(a), 1(l) (except clause (iv) thereof), 2(a), or
2(l) (except clause (viii) thereof) and, except as otherwise provided herein,
such failure shall continue for thirty days after knowledge or notice thereof;
(b) Peabody (or any Affiliate thereof) shall fail to transfer to any
successor Servicer when required any rights pursuant to the Agreement that
Peabody (or such Affiliate) then has as Servicer;
(c) any representation or warranty made or deemed made by the Seller,
Peabody or any Originator (or any of their respective officers) under or in
connection with the Agreement or any other Transaction Document, or any
information or report delivered by the Seller, Peabody or any Originator or the
Servicer pursuant to the Agreement or any other Transaction Document, shall
prove to have been incorrect or untrue in any material respect when made or
deemed made or delivered, and shall remain incorrect or untrue for 10 Business
Days after notice to the Seller or the Servicer of such inaccuracy;
(d) the Seller or the Servicer shall fail to deliver the Information
Package pursuant to the Agreement, and such failure shall remain unremedied for
two Business Days;
(e) the Agreement or any purchase or reinvestment pursuant to the Agreement
shall for any reason: (i) cease to create, or the Purchased Interest shall for
any reason cease to be, a valid and enforceable perfected undivided percentage
ownership or security interest to the extent of the Purchased Interest in each
Pool Receivable, the Related Security and Collections with respect thereto, free
and clear of any Adverse Claim, or (ii) cease to create with respect to the Pool
Assets, or the interest of the Administrator with respect to such Pool Assets
shall cease to be, a valid and enforceable first priority perfected security
interest, free and clear of any Adverse Claim;
(f) the Seller, Peabody or any Originator shall generally not pay its debts
as such debts become due, or shall admit in writing its inability to pay its
debts generally, or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against
V-1
the Seller, Peabody or any Originator seeking to adjudicate it as bankrupt or
insolvent, or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of debtors, or
seeking the entry of an order for relief or the appointment of a receiver,
trustee, custodian or other similar official for it or for any substantial part
of its property and, in the case of any such proceeding instituted against it
(but not instituted by it), either such proceeding shall remain undismissed or
unstayed for a period of 60 days, or any of the actions sought in such
proceeding (including the entry of an order for relief against, or the
appointment of a receiver, trustee, custodian or other similar official for, it
or for any substantial part of its property) shall occur; or the Seller, Peabody
or any Originator shall take any corporate or organizational action to authorize
any of the actions set forth above in this paragraph;
(g) (i) the (A) Default Ratio shall exceed 1.50% or (B) the Delinquency
Ratio shall exceed 4.50% or (ii) the average for three consecutive calendar
months of: (A) the Default Ratio shall exceed 1.00%, (B) the Delinquency Ratio
shall exceed 3.50% or (C) the Dilution Ratio shall exceed 1.50%;
(h) a Change in Control shall occur;
(i) at any time (i) the sum of (A) the Capital, plus the LC Participation
Amount plus (B) the Total Reserves, exceeds (ii) the sum of (A) the Net
Receivables Pool Balance at such time plus (B) the Purchasers' Share of the
amount of Collections then on deposit in the Lock-Box Accounts (other than
amounts set aside therein representing Discount and fees), and such circumstance
shall not have been cured within two Business Days;
(j) (i) the occurrence of any Event of Default under and as defined in the
Credit Agreement, provided that if the Credit Agreement is terminated but not
replaced, the covenants in effect in the Credit Agreement immediately prior to
termination of the Credit Agreement shall be deemed to be effective for the
purposes of the Agreement; (ii) any other event shall occur or condition shall
exist under the Credit Agreement and shall continue after the applicable grace
period, if any, specified in such Credit Agreement if, in either case: (a) the
effect of such non-payment, event or condition is to give the applicable
debtholders the right (whether acted upon or not) to accelerate the maturity of
such Debt, or (b) any such Debt shall be declared to be due and payable, or
required to be prepaid (other than by a regularly scheduled required
prepayment), redeemed, purchased or defeased, or an offer to repay, redeem,
purchase or defease such Debt shall be required to be made, in each case before
the stated maturity thereof; (iii) in the event that the Credit Agreement shall
have terminated, and there exists any other financing arrangement evidencing
$25,000,000 or more of indebtedness pursuant to which Peabody is a debtor or an
obligor (an "Other Material Financing Agreement"); either (A) the occurrence of
any event of default under such Other Material Financing Agreement, or (B) any
other event shall occur or condition shall exist under and shall continue after
the applicable grace period, if any, specified in such Other Material Financing
Agreement, if, in either case of (A) or (B): (i) the effect of such non-payment,
event or condition is to give the applicable debtholders the right (whether
acted upon or not) to accelerate the maturity of such Other Material Financing
Agreement, or (b) any such Other Material Financing Agreement shall be declared
to be due and payable, or required to be prepaid (other than by a regularly
scheduled required prepayment), redeemed, purchased or
V-2
defeased, or an offer to repay, redeem, purchase or defease such Debt shall be
required to be made, in each case before the stated maturity thereof;
(k) except as could not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect, either: (i) a contribution failure
shall occur with respect to any Benefit Plan sufficient to give rise to a lien
on any of the assets of Seller, any Originator, Peabody or any ERISA Affiliate
under Section 302(f) of ERISA, (ii) the Internal Revenue Service shall file a
notice of lien asserting a claim or claims pursuant to the Internal Revenue Code
with regard to any of the assets of Seller, any Originator, Peabody or any ERISA
Affiliate and such lien shall have been filed and not released within 10 days,
or (iii) the Pension Benefit Guaranty Corporation shall, or shall indicate its
intention in writing to the Seller, any Originator, Peabody or any ERISA
Affiliate to, either file a notice of lien asserting a claim pursuant to ERISA
with regard to any assets of the Seller, any Originator, Peabody or any ERISA
Affiliate or terminate any Benefit Plan that has unfunded benefit liabilities,
or any steps shall have been taken to terminate any Benefit Plan subject to
Title IV of ERISA so as to result in any liability and such lien shall have been
filed and not released within 10 days;
(l) the Days' Sales Outstanding exceed 40.0 days;
(m) a default shall occur under the Intercreditor Agreement, or any Person
shall attempt to terminate or assert the invalidity or unenforceability of the
Intercreditor Agreement or any provision thereof; or
(n) Any Letter of Credit is drawn upon and, unless as a result of the LC
Bank's failure to provide the notice required by Section 1.14(b), not fully
reimbursed pursuant to Section 1.14 (including, if applicable, with the proceeds
of any funding by the Issuer) within two Business Days from the date of such
draw.
V-3
SCHEDULE I
CREDIT AND COLLECTION POLICY
Schedule I-1
SCHEDULE II
LOCK-BOX BANKS AND LOCK-BOX ACCOUNTS
Schedule II-1
SCHEDULE III
TRADE NAMES
NONE.
Schedule III-1
SCHEDULE IV
OFFICE LOCATIONS
The Principal Place of Business, Chief Executive Office and state of formation
of the Seller is:
000 Xxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000; Seller is a Delaware limited
liability company
The Seller maintains its master books and records relating to Receivables at:
000 Xxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000
The Principal Place of Business, Chief Executive Office and state of formation
of Peabody is:
000 Xxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000; Peabody is a Delaware corporation
Peabody maintains its master books and records relating to the Receivables at:
000 Xxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000
Schedule IV-1
ANNEX A
TO RECEIVABLES PURCHASE AGREEMENT
FORM OF INFORMATION PACKAGE
Annex A-1
ANNEX B
TO RECEIVABLES PURCHASE AGREEMENT
FORM OF PURCHASE NOTICE
Annex B-1
FORM OF PURCHASE NOTICE
____________________, [200_____]
PNC Bank, National Association
One PNC Plaza, 26th Floor
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Ladies and Gentlemen:
Reference is hereby made to the Amended and Restated Receivables Purchase
Agreement, dated as of September 30, 2005 (as heretofore amended or
supplemented, the "Receivables Purchase Agreement"), among P&L Receivables
Company, LLC, ("Seller"), Peabody Energy Corporation, as Servicer, Arclar
Company, LLC, Black Beauty Coal Company, Twentymile Coal Company, Caballo Coal
Company, Eastern Associated Coal, LLC, COALSALES II, LLC, Peabody Coal Company,
LLC, Peabody Western Coal Company, Powder River Coal Company, Peabody Holding
Company, Inc., COALTRADE, LLC, and COALSALES, LLC, as Sub-Servicers, Market
Street Funding Corporation ("Issuer"), PNC Bank National Association, as
administrator (in such capacity, the "Administrator") and as the issuer of
letters of credit thereunder (in such capacity, the "LC Bank") and the LC
Participants from time to time party thereto. Capitalized terms used in this
Purchase Notice and not otherwise defined herein shall have the meanings
assigned thereto in the Receivables Purchase Agreement.
[This letter constitutes a Purchase Notice pursuant to Section 1.2(a) of
the Receivables Purchase Agreement. Seller desires to sell an undivided variable
interest in a pool of receivables on ____________________, [200_____], for a
purchase price of $____________________. Subsequent to this Purchase, the
aggregate outstanding Capital will be $____________________.](1)
[This letter constitutes a notice pursuant to Section 1.12(a) of the
Receivables Purchase Agreement. Seller desires that LC Bank issue a Letter of
Credit with a face amount of $_____. Subsequent to this Purchase, the LC
Participation Amount will be $_______ and the aggregate outstanding Capital will
be $_____.](2)
Seller hereby represents and warrants as of the date hereof, and as of the
date of purchase, as follows:
(i) the representations and warranties contained in Exhibit III of the
Receivables Purchase Agreement are correct on and as of such dates as though
made on and as of such dates and shall be deemed to have been made on such
dates;
(ii) no Termination Event or Unmatured Termination Event has occurred and
is continuing, or would result from such purchase;
----------
(1) In the case of a Borrowing Request.
(2) In the case of a request for an issuance of a Letter of Credit.
Annex B-2
(iii) after giving effect to the purchase proposed hereby, the aggregate
outstanding Capital of the Purchased Interest will not exceed 100% and the
Capital will not exceed the Purchase Limit; and
(iv) the Facility Termination Date shall not have occurred.
Annex B-3
IN WITNESS WHEREOF, the undersigned has caused this Purchase Notice to be
executed by its duly authorized officer as of the date first above written.
P&L RECEIVABLES COMPANY, LLC
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Annex B-4
ANNEX C
TO RECEIVABLES PURCHASE AGREEMENT
FORM OF PAYDOWN NOTICE
Annex C-1
FORM OF PAYDOWN NOTICE
____________________, 200_____
PNC Bank, National Association
One PNC Plaza, 26th Floor
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Ladies and Gentlemen:
Reference is hereby made to the Amended and Restated Receivables Purchase
Agreement, dated as of September 30, 2005 (as amended, supplemented or otherwise
modified, the "Receivables Purchase Agreement"), among P&L Receivables Company,
LLC, as Seller, Peabody Energy Corporation, as Servicer, Arclar Company, LLC,
Black Beauty Coal Company, Twentymile Coal Company, Caballo Coal Company,
Eastern Associated Coal, LLC, COALSALES II, LLC, Peabody Coal Company, LLC,
Peabody Western Coal Company, Powder River Coal Company, Peabody Holding
Company, Inc., COALTRADE, LLC., and COALSALES, LLC as Sub-Servicers, Market
Street Funding Corporation, as Issuer, PNC Bank, National Association, as
Administrator and as the LC Bank and the various LC Participants from time to
time party thereto. Capitalized terms used in this paydown notice and not
otherwise defined herein shall have the meanings assigned thereto in the
Receivables Purchase Agreement.
This letter constitutes a paydown notice pursuant to Section 1.4(f)(i) of
the Receivables Purchase Agreement. The Seller desires to reduce the Capital on
________________________, _____(3) by the application of $____________________
in cash to pay Capital and Discount to accrue (until such cash can be used to
pay commercial paper notes) with respect to such Capital, together with all
costs related to such reduction of Capital. Subsequent to this Paydown, the
Capital will be $________________.
IN WITNESS WHEREOF, the undersigned has caused this paydown notice to be
executed by its duly authorized officer as of the date first above written.
P&L RECEIVABLES COMPANY, LLC
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
----------
(3) Notice must be given at least five Business Days' prior to the requested
paydown date, in the case of reductions in excess of $20,000,000, or at
least two Business Days' prior to the requested paydown date, in the case
of reductions of $20,000,000 or less.
Annex C-2
ANNEX D
TO RECEIVABLES PURCHASE AGREEMENT
FORM OF COMPLIANCE CERTIFICATE
To: PNC Bank, National Association, as Administrator
This Compliance Certificate is furnished pursuant to that certain
Receivables Purchase Agreement dated as of September 30, 2005 by and among P&L
Receivables Company, LLC ("Seller"), Peabody Energy Corporation (the
"Servicer"), Arclar Company, LLC, Black Beauty Coal Company, Twentymile Coal
Company, Caballo Coal Company, Eastern Associated Coal, LLC, COALSALES II, LLC,
Peabody Coal Company, LLC, Peabody Western Coal Company, Powder River Coal
Company, Peabody Holding Company, Inc., COALTRADE, LLC, and COALSALES, LLC, as
Sub-Servicers, Market Street Funding Corporation (the "Issuer"), PNC Bank,
National Association (the "Administrator") and as the LC Bank and the various LC
Participants from time to time party thereto (the "Agreement"). Capitalized
terms used herein and not otherwise defined herein shall have the meanings
assigned to them in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected ____________________ of Seller.
2. I have reviewed the terms of the Agreement and I have made, or have
caused to be made under my supervision, a detailed review of the transactions
and condition of Seller during the accounting period covered by the attached
financial statements.
3. The examinations described in paragraph 2 did not disclose, and I
have no knowledge of, the existence of any condition or event which constitutes
a Termination Event or an Unmatured Termination Event, as each such term is
defined under the Agreement, during or at the end of the accounting period
covered by the attached financial statements or as of the date of this
Certificate, except as set forth in paragraph 5 below.
4. Schedule I attached hereto sets forth financial data and
computations evidencing the compliance with certain covenants of the Agreement
(and the Credit Agreement), all of which data and computations are true,
complete and correct.
5. Described below are the exceptions, if any, to paragraph 3 by
listing, in detail, the nature of the condition or event, the period during
which it has existed and the action which Seller has taken, is taking, or
proposes to take with respect to each such condition or event:
Annex D-1
The foregoing certifications, together with the computations set forth in
Schedule I hereto and the financial statements delivered with this Certificate
in support hereof, are made and delivered this ____ day of _____________, 20___.
P&L RECEIVABLES COMPANY, LLC
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Annex D-1
SCHEDULE I TO COMPLIANCE CERTIFICATE
A. Schedule of Compliance as of ____________________, 20__ with
Section(s) _____ of the Agreement. Unless otherwise defined herein, the terms
used in this Compliance Certificate have the meanings ascribed thereto in the
Agreement.
This schedule relates to the month ended:
Annex D-1
ANNEX E
TO RECEIVABLES PURCHASE AGREEMENT
FORM OF LETTER OF CREDIT APPLICATION
Annex E-1
ANNEX F
TO RECEIVABLES PURCHASE AGREEMENT
FORM OF TOTAL LEVERAGE CERTIFICATE
Annex E-1
