THIRD AMENDMENT TO AND WAIVER UNDER AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT
EXHIBIT 10.1
EXECUTION COPY
[PEABODY]
THIRD AMENDMENT TO AND WAIVER UNDER AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
RECEIVABLES PURCHASE AGREEMENT
THIS THIRD AMENDMENT TO AND WAIVER UNDER AMENDED AND RESTATED RECEIVABLES PURCHASE
AGREEMENT (this “Amendment”), dated as of October 26, 2007, is entered into among P&L
RECEIVABLES COMPANY, LLC (the “Seller”), PEABODY ENERGY
CORPORATION, (the “Servicer”), the
various Sub-Servicers listed on the signature pages hereto (the
“Sub-Servicers”), Market Street
Funding LLC (as successor to Market Street Funding Corporation, the
“Issuer”), the financial
institutions party to the Agreement (as defined below) as LC
Participants (the “LC
Participants”), and PNC BANK, NATIONAL ASSOCIATION, as
Administrator (the “Administrator”) and
as LC Bank (the “LC Bank”).
RECITALS
1. The parties hereto are parties to the Amended and Restated Receivables Purchase
Agreement, dated as of September 30, 2005 (as amended, amended and restated, supplemented or
otherwise modified through the date hereof, the “Agreement”); and
2. The parties hereto desire to amend the Agreement as hereinafter set forth.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
SECTION 1. Certain Defined Terms. Capitalized terms that are used but not defined
herein shall have the meanings set forth in the Agreement.
SECTION 2. Amendments to the Agreement.
(a) The definition of “Monthly Settlement Date” set forth in Exhibit
I to the Agreement is hereby amended and restated in its entirety as follows:
“Monthly Settlement Date” means (a) for any calendar month other than
the calendar months of November 2007, December 2007, January 2008 or February 2008,
the twenty-first day of such calendar month (or the next succeeding Business Day if
such day is not a Business Day), beginning March 21, 2002 and (b) for each of the
calendar months of November 2007, December 2007, January 2008 and February 2008,
the twenty-fifth day of such calendar month (or the next succeeding Business Day if
such day is not a Business Day).
SECTION 3. Waiver.
(a) Pursuant
to the terms of Section 2(l)(iv) of Exhibit IV to the Agreement, the
Information Package (the “October Information Package”) required to be delivered by the
Servicer to the Administrator in connection with the Monthly Settlement Date in October 2007
was due on
October 18, 2007 (the “Due Date”). The Servicer has breached its covenant to deliver to
the Administrator the October Information Package by the Due Date
(the “Breach”) and, as a result,
the Termination Event set forth in clause (d) of Exhibit V of the Agreement has
occurred and is continuing (the “Information Package Termination Event”). The Seller and
the Servicer have requested that each of the Administrator, the LC Bank and the LC Participant
(collectively, the “Waiving Parties”) (a) extend the Due Date for the October Information Package
to November 1, 2007 (the “Extension Date”) and (b) waive the Information Package Termination Event
arising solely as a result of the Breach as strictly described herein. Each of the Waiving Parties
hereby (a) consents to the Extension Date and (b) waives the Information Package Termination Event
occurring solely as a result of the Breach as strictly described
herein; provided, that, any
failure by the Servicer to deliver to the Administrator the October Information Package on or
before the Extension Date shall constitute a breach of
Section 2(l)(iv) of Exhibit IV to the Agreement and a Termination Event under clause (d) of Exhibit V of
the Agreement; provided, further, that any other failure by the Servicer to satisfy the
requirements set forth in Section 2(l)(iv) of
Exhibit IV to the Agreement shall constitute
a breach thereof and a Termination Event under clause (d) of Exhibit V of the
Agreement.
(b) Except as specifically waived or modified hereby, (i) all of the terms, conditions and
provisions of the Agreement and each other Transaction Document shall stand and remain unchanged
and in full force and effect, and (ii) the Waiving Parties waive none of, but instead, expressly
reserve all of their claims, rights, powers and remedies, whether as a matter of contract, tort or
other applicable law with respect to the Agreement and each other Transaction Document. The waiver
provided for herein shall be strictly construed and limited as provided herein.
SECTION 4. Representations and Warranties. Subject to the waiver strictly described
herein, each of the Seller, the Servicer and the Sub-Servicers hereby represents and warrants to
the Administrator and the Purchasers as follows:
(a) Representations and Warranties. The representations and warranties made by it in
the Transaction Documents are true and correct as of the date hereof (unless stated to relate
solely to an earlier date, in which case such representations or warranties were true and correct
as of such earlier date).
(b) Enforceability. The execution and delivery by such Person of this Amendment, and
the performance of each of its obligations under this Amendment and the Agreement, as amended
hereby, are within each of its corporate powers and have been duly authorized by all necessary
corporate action on its part. This Amendment and the Agreement, as amended hereby, are such
Person’s valid and legally binding obligations, enforceable in accordance with its terms.
(c) No Default. Both before and immediately after giving effect to this Amendment and
the transactions contemplated hereby, no Termination Event or Unmatured Termination Event exists or
shall exist.
SECTION
5. Effect of Amendment. All provisions of the Agreement, as expressly amended
and modified by this Amendment, shall remain in full force and effect. After this Amendment
becomes effective, all references in the Agreement (or in any other Transaction
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Document)
to “this Agreement”, “hereof”, “herein” or words of similar effect referring to the
Agreement shall be deemed to be references to the Agreement as amended by this Amendment. This
Amendment shall not be deemed, either expressly or impliedly, to waive, amend or supplement any
provision of the Agreement other than as set forth herein.
SECTION 6. Effectiveness. This Amendment shall become effective as of the date hereof
upon receipt by the Administrator of:
(a) counterparts of this Amendment (whether by facsimile or otherwise) executed by each of the
other parties hereto; and
(b) such other documents and instruments as the Administrator may reasonably request.
SECTION 7. Counterparts. This Amendment may be executed in any number of counterparts
and by different parties on separate counterparts, each of which when so executed shall be deemed
to be an original and all of which when taken together shall constitute but one and the same
instrument.
SECTION 8. Governing Law. This Amendment shall be governed by, and construed in
accordance with, the internal laws of the State of Illinois.
SECTION
9. Section Headings. The various headings of this Amendment are included for
convenience only and shall not affect the meaning or interpretation of this Amendment, the
Agreement or any provision hereof or thereof.
[Signatures begin on next page]
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IN
WITNESS WHEREOF, the parties have executed this Amendment as of the date first written
above.
P&L RECEIVABLES COMPANY, LLC, as Seller | ||||||
By: | /s/ Xxxxxx X. Xxxxxxx, Xx. | |||||
Name: | XXXXXX X. XXXXXXX, XX. | |||||
Title: | TREASURER & XX | |||||
XXXXXXX ENERGY CORPORATION, as Servicer | ||||||
By: | /s/ Xxxxxx X. Xxxxxxx, Xx. | |||||
Name: | XXXXXX X. XXXXXXX, XX. | |||||
Title: | TREASURER & VP |
Third Amendment to A&R RPA (Peabody)
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ARCLAR COMPANY, LLC,
as Sub-Servicer |
||||||
By: | /s/ Xxxxxx X. Xxxxxxx, Xx. | |||||
Name: | XXXXXX X. XXXXXXX, XX. | |||||
Title: | TREASURER & VP | |||||
BLACK BEAUTY COAL
COMPANY, LLC as Sub-Servicer |
||||||
By: | /s/ Xxxxxx X. Xxxxxxx, Xx. | |||||
Name: | XXXXXX X. XXXXXXX, XX. | |||||
Title: | TREASURER & VP | |||||
CABALLO COAL COMPANY,
as Sub-Servicer |
||||||
By: | /s/ Xxxxxx X. Xxxxxxx, Xx. | |||||
Name: | XXXXXX X. XXXXXXX, XX. | |||||
Title: | TREASURER & VP |
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COALSALES, LLC, as Sub-Servicer |
||||
By: | /s/ Xxxxxx X. Xxxxxxx, Xx. | |||
Name: | XXXXXX X. XXXXXXX, XX. | |||
Title: | TREASURER & VP | |||
COALSALES II, LLC, as Sub-Servicer |
||||
By: | /s/ Xxxxxx X. Xxxxxxx, Xx. | |||
Name: | ||||
Title: | TREASURER & VP | |||
COALTRADE, LLC, as Sub Servicer |
||||
By: | /s/ Xxxxxx X. Xxxxxxx, Xx. | |||
Name: | XXXXXX X. XXXXXXX, XX. | |||
Title: | TREASURER & VP | |||
COALTRADE INTERNATIONAL, LLC, as Sub-Servicer |
||||
By: | /s/ Xxxxxx X. Xxxxxxx, Xx. | |||
Name: | XXXXXX X. XXXXXXX, XX. | |||
Title: | TREASURER & VP |
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PEABODY HOLDING COMPANY, LLC, as Sub-Servicer |
||||
By: | /s/ Xxxxxx X. Xxxxxxx, Xx. | |||
Name: | XXXXXX X. XXXXXXX, XX. | |||
Title: | TREASURER & XX | |||
XXXXXXX WESTERN COAL COMPANY, as Sub-Servicer |
||||
By: | /s/ Xxxxxx X. Xxxxxxx, Xx. | |||
Name: | XXXXXX X. XXXXXXX, XX. | |||
Title: | TREASURER & VP | |||
POWDER RIVER COAL, LLC as Sub-Servicer |
||||
By: | /s/ Xxxxxx X. Xxxxxxx, Xx. | |||
Name: | XXXXXX X. XXXXXXX, XX. | |||
Title: | TREASURER & VP | |||
TWENTYMILE COAL COMPANY, as Sub-Servicer |
||||
By: | /s/ Xxxxxx X. Xxxxxxx, Xx. | |||
Name: | XXXXXX X. XXXXXXX, XX. | |||
Title: | TREASURER & VP |
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XXXXXX XXXXXX FUNDING LLC, as Issuer | ||||
By: | /s/ Xxxxx X. Xxxxx | |||
Name: | Xxxxx X. Xxxxx | |||
Title: | Vice President | |||
PNC BANK, NATIONAL ASSOCIATION, | ||||
as Administrator | ||||
By: | /s/ Xxxxxxx X. Xxxxxx | |||
Name: | Xxxxxxx X. Xxxxxx | |||
Title: | Vice President | |||
PNC BANK, NATIONAL ASSOCIATION, | ||||
as the LC Bank and as an LC Participant | ||||
By: | /s/ Xxxxxxx X. Xxxxxx | |||
Name: | Xxxxxxx X. Xxxxxx | |||
Title: | Vice President |
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Amendment to A&R RPA (Peabody)
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