Exhibit 10.28
EXECUTION
RECEIVABLES PURCHASE AGREEMENT
DATED AS OF FEBRUARY 20, 2002
BY AND AMONG
P&L RECEIVABLES COMPANY, LLC,
As Seller
AND
PEABODY ENERGY CORPORATION,
As initial Servicer
AND
BIG SKY COAL COMPANY
CABALLO COAL COMPANY
EASTERN ASSOCIATED COAL CORP.
PEABODY COAL SALES COMPANY
PEABODY COAL COMPANY
PEABODY WESTERN COAL COMPANY
POWDER RIVER COAL COMPANY
PEABODY HOLDING COMPANY, INC.
PEABODY COALTRADE, INC.,
As Sub-Servicers
AND
MARKET STREET FUNDING CORPORATION,
As Issuer
AND
PNC BANK, NATIONAL ASSOCIATION,
As Administrator
TABLE OF CONTENTS
PAGE
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ARTICLE I. AMOUNTS AND TERMS OF THE PURCHASES............................... 1
Section 1.1 Purchase Facility......................................... 1
Section 1.2 Making Purchases.......................................... 2
Section 1.3 Purchased Interest Computation............................ 3
Section 1.4 Settlement Procedures..................................... 3
Section 1.5 Fees...................................................... 6
Section 1.6 Payments and Computations, Etc............................ 6
Section 1.7 Increased Costs........................................... 6
Section 1.8 Requirements of Law....................................... 7
Section 1.9 Inability to Determine Euro-Rate.......................... 8
Section 1.10 Extension of the Liquidity Termination Date............... 9
ARTICLE II. REPRESENTATIONS AND WARRANTIES; COVENANTS; TERMINATION EVENTS... 10
Section 2.1 Representations and Warranties; Covenants................. 10
Section 2.2 Termination Events........................................ 10
ARTICLE III. INDEMNIFICATION................................................ 10
Section 3.1 Indemnities by the Seller................................. 10
Section 3.2 Indemnities by the Servicer............................... 12
ARTICLE IV. ADMINISTRATION AND COLLECTIONS.................................. 12
Section 4.1 Appointment of the Servicer............................... 12
Section 4.2 Duties of the Servicer.................................... 13
Section 4.3 Lock-Box Arrangements..................................... 14
Section 4.4 Enforcement Rights........................................ 14
Section 4.5 Responsibilities of the Seller............................ 15
Section 4.6 Servicing Fee............................................. 16
ARTICLE V. MISCELLANEOUS.................................................... 16
Section 5.1 Amendments, Etc............................................ 16
Section 5.2 Notices, Etc............................................... 16
Section 5.3 Assignability.............................................. 17
Section 5.4 Costs, Expenses and Taxes.................................. 17
Section 5.5 No Proceedings; Limitation on Payments..................... 18
Section 5.6 Confidentiality............................................ 18
Section 5.7 GOVERNING LAW AND JURISDICTION............................. 19
Section 5.8 Execution in Counterparts.................................. 19
Section 5.9 Survival of Termination; Non-Waiver........................ 19
Section 5.10 WAIVER OF JURY TRIAL....................................... 19
Section 5.11 Entire Agreement........................................... 20
Section 5.12 Headings................................................... 20
Section 5.13 Issuer's Liabilities....................................... 20
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EXHIBIT I DEFINITIONS................................................... I-1
EXHIBIT II CONDITIONS OF PURCHASES.......................................II-1
EXHIBIT III REPRESENTATIONS AND WARRANTIES...............................III-1
EXHIBIT IV COVENANTS.....................................................IV-1
EXHIBIT V TERMINATION EVENTS............................................ V-1
SCHEDULE I CREDIT AND COLLECTION POLICY.................................. 1
SCHEDULE II LOCK-BOX BANKS AND LOCK-BOX ACCOUNTS.......................... 1
SCHEDULE III TRADE NAMES................................................... 1
SCHEDULE IV OFFICE LOCATIONS.............................................. 1
ANNEX A FORM OF INFORMATION PACKAGE................................... A-1
ANNEX B FORM OF PURCHASE NOTICE....................................... X-0
XXXXX X XXXX XX XXXXXXX XXXXXX........................................ X-0
XXXXX X FORM OF COMPLIANCE CERTIFICATE................................ D-1
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This RECEIVABLES PURCHASE AGREEMENT (as amended, supplemented or
otherwise modified from time to time, this "Agreement") is entered into as of
February 20, 2002, 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"), BIG SKY COAL COMPANY, a Delaware corporation, CABALLO
COAL COMPANY, a Delaware corporation, EASTERN ASSOCIATED COAL CORP., a West
Virginia corporation, PEABODY COAL SALES COMPANY, a Delaware corporation,
PEABODY COAL COMPANY, a Delaware corporation, PEABODY WESTERN COAL COMPANY, a
Delaware corporation, POWDER RIVER COAL COMPANY, a Delaware corporation, ,
PEABODY HOLDING COMPANY, INC., a New York corporation, PEABODY COALTRADE, INC.,
a Delaware corporation, (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"), and 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").
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 Issuer desires 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 Issuer.
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 of, undivided 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. Under no
circumstances shall the Issuer make any such purchase or reinvestment if, after
giving effect to such purchase or reinvestment, the aggregate outstanding
Capital of the Purchased Interest 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
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$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.
Section 1.2 Making Purchases.
(a) Each 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 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 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 Bank One,
Chicago, Illinois, account number 0000000, 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 purchase pursuant to this Section
and each reinvestment pursuant to Section 1.4, the Seller hereby sells and
assigns to the Issuer 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 Issuer 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 Issuer shall have, with respect
to the Pool Assets, and in addition to all the other rights and remedies
available to the Issuer, all the rights and remedies of a secured party under
any applicable UCC.
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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, all the amounts owed by the Seller and the Servicer hereunder to the
Issuer, the Administrator and 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 Issuer, out of the Issuer's Share of such Collections,
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 Issuer's 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 Issuer, the remainder of
the Issuer's Share of such Collections. 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 reinvest, but shall set
aside and hold in trust for the Issuer (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 (and shall, at the request of the Administrator, segregate in
a separate account approved by the Administrator) for the Issuer the entire
remainder of the Issuer's 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-
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aside amounts shall 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: (x) amounts required to be
reinvested in accordance with clause (ii) or the proviso to clause (iii) plus
(y) the amounts that are required to be set aside pursuant to clause (i), the
proviso to clause (ii) and clause (iii) plus (z) 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.
(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 Issuer pursuant to clause (b)(i) or (f) plus the amount
of Collections then held for the Issuer 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 Issuer's 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
Issuer 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 Issuer's 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 Issuer in payment
in full of all accrued Discount with respect to each Portion of Capital, second
to the Issuer 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 Servicer in payment in full of all accrued Servicing Fees, and
fourth, 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 Issuer, the Administrator and any other
Indemnified Party or Affected Person in payment in full of any other amounts
owed thereto by the Seller hereunder.
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 Issuer, the Administrator or any
other Indemnified Party or Affected Person hereunder, have
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been paid 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 the Issuer
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 the Issuer but rather to have been retained by
the Seller and, accordingly, the Administrator or the Issuer, 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;
(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 Issuer, for payment to the Administrator on the next Settlement Date
immediately following the current
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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, and the entire Capital of the
Purchased Interest after giving effect to such reduction shall be not less than
$50,000,000 and shall be in an integral multiple of $100,000.
Section 1.5 Fees.
The Seller shall pay to the Administrator certain fees in the
amounts and on the dates set forth in a letter, 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 he 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 Issuer, any Purchaser, 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 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
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to maintain the investment in) Pool Receivables 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 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
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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 acting as Administrator, or of agreeing to purchase or
purchasing or maintaining the ownership of undivided percentage ownership
interests with regard to 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 Purchaser that, such Purchaser 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 Purchaser with
any guideline, request or directive (whether or not having the force of law) of
any such authority, central bank or comparable agency shall make it unlawful or
impossible for such Purchaser 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
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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 Purchaser 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 Purchaser
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.
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 (as used herein, 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 Purchasers must respond to the Extension
Request (the "Response Date"). The new Liquidity Termination Date shall 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 Purchasers of the contents
thereof and shall request each Purchaser to approve the Extension Request. Each
Purchaser approving the Extension Request shall deliver its written approval to
the Administrator no later than the Response Date (it being understood that the
Purchasers 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 Purchasers have
approved the Extension Request. In the event that all Purchasers shall approve
such Extension Request, the Purchasers shall enter into such documents as the
Purchasers may deem necessary or appropriate to reflect such extension, all
reasonable costs and expenses incurred by the Purchasers 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
Purchasers of the new Liquidity Termination Date, and the Seller shall pay to
the Administrator for the account of each of the Purchasers a fully-earned and
non-refundable extension fee of $2,500. In the event that the Purchasers 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 Purchasers 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.
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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 Issuer 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.
ARTICLE III.
INDEMNIFICATION
Section 3.1 Indemnities by the Seller.
Without limiting any other rights that the Administrator, the
Issuer, any Program Support Provider or any of their respective Affiliates,
employees, officers, directors, agents, counsel, successors, transferees or
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 or counsel, (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
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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 the Issuer 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 Issuer 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,
(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,
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(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, the
Issuer 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 the Issuer or the Administrator 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 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.
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(c) Peabody acknowledges that, in making their decision to execute and
deliver this Agreement, the Administrator and the Issuer 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 Issuer 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 Big Sky Coal Company,
Caballo Coal Company, Eastern Associated Coal Corp., Peabody Coal Sales Company,
Peabody Coal Company, Peabody Western Coal Company, Powder River Coal Company,
Peabody Holding Company, Inc., or , Peabody CoalTrade, Inc., the Administrator
shall have consented in writing in advance to such delegation.
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 Issuer, 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 the Issuer 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 Issuer), 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.
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(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 and (ii) the date on which all amounts
required to be paid to the Issuer, 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.
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
Issuer 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:
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(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 Issuer's 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 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 the
Issuer 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. The Administrator and the Issuer shall not have any obligation or
liability with respect to any Pool Asset, nor shall either of them be obligated
to perform any of the obligations of the Seller, Peabody or any Originator
thereunder.
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(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 Issuer's 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 expenses incurred by
such successor Servicer in connection with the performance of its obligations as
Servicer.
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, 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 he 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 Assignability.
(a) 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 Purchaser 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 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).
(b) The Issuer may at any time grant to one or more banks or other
institutions (each a "Purchaser") 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 Purchaser or other Program Support Provider, the Issuer shall
remain responsible for the performance of its obligations hereunder. The Seller
agrees that each Purchaser or other Program Support Provider shall be entitled
to the benefits of Sections 1.7 and 1.8.
(c) 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.
(d) 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.
(e) Without limiting any other rights that may be available under
applicable law, the rights of the Issuer 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 Section
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
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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 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,
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 and the
Issuer 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 or the Administrator 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, any Program Support
Provider or any Purchaser.
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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 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, 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
-19-
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 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]
-20-
[SIGNATURE PAGE 1 OF 8 TO
RECEIVABLES PURCHASE AGREEMENT]
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:
-------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
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:
-------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Address: 000 Xxxxxx Xxxxxx, Xx. Xxxxx, XX 00000
Attention: Treasurer
Telephone: 000-000-0000
Facsimile: 000-000-0000
-21-
[SIGNATURE PAGE 2 OF 8 TO
RECEIVABLES PURCHASE AGREEMENT]
BIG SKY COAL COMPANY,
as Sub-Servicer
By:
-------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Address: X.X. Xxx 00, Xxxxxxxx, XX 00000
Attention: Treasurer
Telephone: 000-000-0000
Facsimile: 000-000-0000
CABALLO COAL COMPANY,
as Sub-Servicer
By:
-------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Address: 1013 Boxelder, Caller Xxx 0000, Xxxxxxx,
XX 00000
Attention: Treasurer
Telephone: 000-000-0000
Facsimile: 000-000-0000
-22-
[SIGNATURE PAGE 3 OF 8 TO
RECEIVABLES PURCHASE AGREEMENT]
EASTERN ASSOCIATED COAL CORP.,
as Sub-Servicer
By:
------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Address: 000 Xxxxxxx Xxxxx, Xxxxxxxxxx, XX
00000
Attention: Treasurer
Telephone: 000-000-0000
Facsimile: 000-000-0000
PEABODY COAL SALES COMPANY,
as Sub-Servicer
By:
------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Address: 000 Xxxxxx Xx., Xx. Xxxxx, XX 00000-
1826
Attention: Treasurer
Telephone: 000-000-0000
Facsimile: 000-000-0000
-23-
[SIGNATURE PAGE 4 OF 8 TO
RECEIVABLES PURCHASE AGREEMENT]
PEABODY COAL COMPANY,
as Sub-Servicer
By:
------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Address: 000 Xxxxxx Xx., Xx. Xxxxx, XX 00000-
1826
Attention: Treasurer
Telephone: 000-000-0000
Facsimile: 000-000-0000
PEABODY WESTERN COAL COMPANY,
as Sub-Servicer
By:
------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Address: 000 Xxxxxx Xx., Xx. Xxxxx, XX 00000-
1826
Attention: Treasurer
Telephone: 000-000-0000
Facsimile: 000-000-0000
-24-
[SIGNATURE PAGE 5 OF 8 TO
RECEIVABLES PURCHASE AGREEMENT]
POWDER RIVER COAL COMPANY,
as Sub-Servicer
By:
------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
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:
------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Address: 000 Xxxxxx Xx., Xx. Xxxxx, XX 00000-
1825
Attention: Treasurer
Telephone: 000-000-0000
Facsimile: 000-000-0000
-25-
[SIGNATURE PAGE 6 OF 8 TO
RECEIVABLES PURCHASE AGREEMENT]
PEABODY COALTRADE, INC.,
as Sub-Servicer
By:
------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Address: 000 Xxxxxx Xx., Xx. Xxxxx, XX 00000-
1825
Attention: Treasurer
Telephone: 000-000-0000
Facsimile: 000-000-0000
-26-
[SIGNATURE PAGE 7 OF 8 TO
RECEIVABLES PURCHASE AGREEMENT]
MARKET STREET FUNDING CORPORATION,
as Issuer
By:
------------------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
Address:
Market Street Funding Corporation
c/o AMACAR Group, LLC
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxx Xxxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
With a copy to:
PNC Bank, National Association
One PNC Plaza, 26th Floor
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Xxxx X. Xxxxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
-27-
[SIGNATURE PAGE 8 OF 8 TO
RECEIVABLES PURCHASE AGREEMENT]
PNC BANK, NATIONAL ASSOCIATION,
as Administrator
By:
-----------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
Address:
PNC Bank, National Association
One PNC Plaza, 26th Floor
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Xxxx X. Xxxxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
-28-
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
Issuer 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 Issuer or the Administrator
(for the benefit of the Issuer) 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 10%, for the purposes of the definition of "Change of Control") 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. ss. 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.
"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 amount paid to the Seller in respect of the
Purchased Interest by the Issuer pursuant to the Agreement, or such amount
divided or combined in order to determine the Discount applicable to any Portion
of Capital, in each case 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 that (a) Peabody ceases to own, directly or
indirectly, 100% of the membership interests of the Seller free and clear of all
Adverse Claims; (b) any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")), excluding LBMBP II and its Affiliates shall (i) become, or
obtain rights (whether by means of warrants, options or otherwise) to become,
the "beneficial owner" (as defined in Rules 13(d)-3 and 13(d)-5 under the
Exchange Act), directly or indirectly, of a greater percentage of the
outstanding common stock of Peabody than the percentage of such common stock
owned by LBMBP II and its Affiliates or (ii) have the power to vote or direct
the voting of securities having a majority of the ordinary voting power for the
election of directors or managers of Peabody (determined on a fully diluted
basis) ; (c) with
I-2
respect to any Material Originator, Peabody ceases to have beneficial ownership
(as defined in clause (b)), directly or indirectly, of at least 75% of the
outstanding shares of voting securities of such Material Originator; or (d)
Peabody ceases to have beneficial ownership (as defined in clause (b)), directly
or indirectly, 100% of the outstanding shares of voting securities of Peabody
Holding Company, Inc.
"Closing Date" means February 20, 2002.
"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.
"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, 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 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 of even date herewith 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.
I-3
"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 Amended and Restated Credit
Agreement, dated as of June 9, 1998, among Peabody, as borrower, the several
lenders from time to time parties thereto, Xxxxxx Brothers Inc., as arranger,
Xxxxxx Commercial Paper Inc., as syndication agent, Bank of America National
Trust & Savings Association and The Fuji Bank, Limited, each as a documentation
agent and Bank One, NA (formerly known as The First National Bank of Chicago),
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.
"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
I-4
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, 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, 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 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
Capital 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.
I-5
"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:
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,
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.
"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 Dollars and payable to an Originator at a Lock-Box
I-6
Account, (B) the total of all Eligible Receivables the Obligors of
which are Canadian residents does not exceed 3% of all Eligible
Receivables, and (C) 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,
(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 Issuer 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
I-7
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, and
(p) that represents amounts earned and payable by the Obligor
that are not subject to the performance of additional services by the
Originator thereof.
"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
I-8
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).
"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.
"Facility Termination Date" means the earliest to occur of: (a)
February 20, 2007 (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, and (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.
"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.
"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.
I-9
"Group A Obligor" means any Obligor with a short-term rating of at
least: (a) "A-l" 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 Group A Special
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 Group
B Special 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 Group C Special Obligor.
"Group D Obligor" means any Obligor that is not a Group A Obligor,
Group B Obligor or Group C Obligor, and any Group D Special 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 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 the date hereof, 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.
I-10
"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.
"Issuer" has the meaning set forth in the preamble to the Agreement.
"Issuer's Share" of any amount means such amount multiplied by the
Purchased Interest at the time of determination.
"LBMBP II" means Xxxxxx Brothers Merchant Banking Partners II L.P., a
Delaware limited partnership
"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 even date herewith, 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.
"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 Capital
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.
"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,
I-11
(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
Issuer's or the Seller's interest in the Pool Assets.
"Material Originator" means any of the following at any time, so long
as such Person is an Originator: (i) Peabody COALSALES Company, a Delaware
corporation, (ii) Powder River Coal Company, a Delaware corporation, (iii)
Peabody Western Coal Company, a Delaware corporation, (iv) Peabody Coal Company,
a Delaware corporation, and (v) 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.
I-12
"Obligor Group" means any of the following: Group A Obligor, Group B
Obligor, Group C Obligor or Group D Obligor.
"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.
"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
I-13
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 Purchaser 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.
"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 $140,000,000, 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 then
outstanding Capital.
"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 + Total Reserves
----------------------------
Net Receivables Pool Balance
The Purchased Interest shall be determined from time to time pursuant to Section
1.3 of the Agreement.
"Purchaser" has the meaning set forth in Section 5.3(b) of the
Agreement.
I-14
"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.
"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.
"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.
"Sale Agreement" means the Purchase and Sale Agreement, dated as of
even date herewith, between the Contributor and the Originators as such
agreement may be amended, amended and restated, supplemented or otherwise
modified from time to time.
I-15
"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 Issuer's Share.
"Servicer" has the meaning set forth in the preamble to the Agreement.
"Servicer Note" shall mean that certain Promissory Note dated of even
date herewith 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 (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
I-16
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
(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, for so long as, with respect to the Mohave 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 (i)(a) above is true, complete and correct.
The Mohave Project shall be deemed to be a "Special Group A Obligor" hereunder
for so long as the Mohave Project has at least one project participant with the
rating of a Group A Obligor; the Mohave Project shall be deemed to be a "Special
Group B Obligor" hereunder for so long as the Mohave 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); the Mohave Project shall be
deemed to be a "Special Group C Obligor" hereunder for so long as the Mohave
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 the Mohave Project shall be deemed to be a "Special Group
D Obligor" hereunder for so long as the Mohave Project has no project
participants with the rating of a Group A Obligor, a Group B Obligor or a Group
C Obligor. The Navajo Project shall be deemed to be an Obligor in the Special
Obligor Group that is one "grade" (as defined in the next sentence) below the
Obligor Group in which Salt River Project
I-17
Agricultural Improvement and Power District ("Salt River") is rated for so long
as Salt River continues to own at least 46% of each class of the equity and
other interests in the Navajo Project; provided, that in the event that Salt
River ceases to own at least 46% of each class of the equity and other interests
in the Navajo Project, the Navajo Project shall be deemed to be a Special Group
D Obligor. For the purposes of the preceding sentence, a Special Group B Obligor
is one "grade" below a Group A Obligor, a Special Group C Obligor is one "grade"
below a Group B Obligor, and a Special Group D Obligor is one "grade" below 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.
"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.
"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 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.
I-18
"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.
"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
Capital 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:
(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.
I-19
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 Issuer 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) Completed UCC search reports, dated on or shortly before the date
of the initial purchase hereunder, listing the financing statements filed in all
applicable jurisdictions referred to in subsection (e) above that name the
Originators, Peabody or the Seller as debtor, together with copies of such other
financing statements, and similar search reports with respect to judgment liens,
federal tax liens and liens of the Pension Benefit Guaranty Corporation in such
jurisdictions, as the Administrator may request, showing no Adverse Claims on
any Pool Assets other than such Adverse Claims as to which those financing
statements (Form UCC-3) referred to in subsection (e) above shall terminate.
II-1
(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 Xxxxxxx, General Counsel to the
Seller, the Originators and Peabody.
(h) Satisfactory results of a review and audit (performed by
representatives of the Administrator) of the Servicer's collection, operating
and reporting systems, the Credit and Collection Policy of the Originator,
historical receivables data and accounts, including satisfactory results of a
review of the Servicer's operating location(s) and satisfactory review and
approval of the Eligible Receivables in existence on the date of the initial
purchase under the Agreement.
(i) A pro forma Information Package representing the performance of
the Receivables Pool for the calendar month before closing.
(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 Issuer may reasonably request.
(o) Such other approvals, opinions or documents as the Administrator
or the Issuer may reasonably request.
2. Conditions Precedent to All Purchases and Reinvestments. Each
purchase (except as to clause (a), including the initial purchase) and each
reinvestment shall be subject to the further conditions precedent that:
(a) in the case of each purchase, the Servicer shall have delivered to
the Administrator on or before such purchase, in form and substance satisfactory
to the Administrator, a completed pro forma Information Package to reflect the
level of Capital and related reserves and the calculation of the Purchased
Interest after such subsequent purchase and a completed Purchase Notice in the
form of Annex B; and
(b) on the date of such purchase or reinvestment the following
statements shall be true (and acceptance of the proceeds of such purchase or
reinvestment shall be deemed a representation and warranty by the Seller that
such statements are then true):
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(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 purchase or reinvestment as though made on and
as of such date;
(ii) no event has occurred and is continuing, or would result
from such purchase 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
(iv) the Capital does not exceed the Purchase Limit.
II-3
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 Issuer 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
Issuer 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 Issuer 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 Issuer." 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 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 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 Issuer, 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 Issuer. 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 March 31, 2001, 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 the financial condition of Peabody and its
consolidated Subsidiaries as at such date and the results of the operations of
III-4
Peabody and its Subsidiaries for the period ended on such date, all in
accordance with generally accepted accounting principles consistently applied,
and since March 31, 2001 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 "holding company" within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
III-5
(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.
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 or the date all other amounts owed by
the Seller under the Agreement to the Issuer, 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 and regulations 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 Issuer 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 Issuer, including taking such
action to perfect, protect or more fully evidence the interest of the Issuer as
the Issuer, through 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 Issuer's 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 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, on
behalf of the Issuer.
(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 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
IV-2
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.
(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;
IV-3
(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 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
IV-4
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 or the date all other
amounts owed by the Seller under the Agreement to the Issuer, 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 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
IV-5
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 Issuer 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 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
IV-6
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 Issuer 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, 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.
(k) Mohave Project. Peabody shall notify the Administrator if 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.
(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
IV-7
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 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;
(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;
(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;
IV-8
(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 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 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
IV-9
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.
(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;
IV-10
(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
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;
IV-11
(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 of 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 Issuer 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 (B) the Total
Reserves, exceeds (ii) the sum of (A) the Net Receivables Pool Balance at such
time plus (B) the Issuer's 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; or
(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.
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 Receivables Purchase Agreement, dated
as of February 20, 2002 (as heretofore amended or supplemented, the "Receivables
Purchase Agreement"), among P&L Receivables Company, LLC, ("Seller"), Peabody
Energy Corporation, as Servicer, Big Sky Coal Company, Caballo Coal Company,
Eastern Associated Coal Corp., Peabody Coal Sales Company, Peabody Coal Company,
Peabody Western Coal Company, Powder River Coal Company, Peabody Holding
Company, Inc., Peabody CoalTrade, Inc., as Sub-Servicers, Market Street Funding
Corporation ("Issuer'") and PNC Bank National Association, (the
"Administrator"). 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 $____________________.
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;
(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-2
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-3
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 Receivables Purchase Agreement, dated
as of February 20, 2002 (as amended, supplemented or otherwise modified, the
"Receivables Purchase Agreement"), among P&L Receivables Company, LLC, as
Seller, Peabody Energy Corporation, as Servicer, Big Sky Coal Company, Caballo
Coal Company, Eastern Associated Coal Corp., Peabody Coal Sales Company, Peabody
Coal Company, Peabody Western Coal Company, Powder River Coal Company, Peabody
Holding Company, Inc., Peabody CoalTrade, Inc., as Sub-Servicers, Market Street
Funding Corporation, as Issuer and PNC Bank, National Association, as
Administrator. 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 ________________________, _____(1) 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:
---------------------------------------
--------------------
(1) 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 February 20, 2002 by and among P&L
Receivables Company, LLC ("Seller"), Peabody Energy Corporation (the
"Servicer"), Big Sky Coal Company, Caballo Coal Company, Eastern Associated Coal
Corp., Peabody Coal Sales Company, Peabody Coal Company, Peabody Western Coal
Company, Powder River Coal Company, Peabody Holding Company, Inc., Peabody
CoalTrade, Inc., as Sub-Servicers, Market Street Funding Corporation (the
"Issuer"), and PNC Bank, National Association (the "Administrator") (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-2
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-3
