FIFTH AMENDMENT TO AMENDED AND
RESTATED
RECEIVABLES PURCHASE AGREEMENT
THIS FIFTH
AMENDMENT TO AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT
(this “ Amendment ”), dated as of April 11,
2008, is entered into among P&L RECEIVABLES COMPANY, LLC (the
“ Seller ”), PEABODY ENERGY CORPORATION, (the
“ Servicer ”), the various Sub-Servicers listed
on the signature pages hereto (the “ Sub-Servicers
”), Market Street Funding LLC (as successor to Market Street
Funding Corporation, the “ Issuer ”), all LC
Participants listed on the signature pages hereto (the “
LC Participants ”), and PNC BANK, NATIONAL
ASSOCIATION, as Administrator (the “ Administrator
”) and as LC Bank (the “ LC Bank
”).
1. The
parties hereto are parties to the Amended and Restated Receivables
Purchase Agreement, dated as of September 30, 2005 (as
amended, amended and restated, supplemented or otherwise modified
through the date hereof, the “ Agreement ”);
and
2. The
parties hereto desire to amend the Agreement as hereinafter set
forth.
NOW THEREFORE, for
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as
follows:
SECTION 1.
Certain Defined Terms . Capitalized terms that are
used but not defined herein shall have the meanings set forth in
the Agreement.
SECTION 2.
Amendments to the Agreement .
(a) The
definition of “Monthly Settlement Date” set forth in
Exhibit I to the Agreement is hereby amended and
restated in its entirety as follows:
“ Monthly
Settlement Date ” means (a) for any calendar month
other than the calendar months of November 2007,
December 2007, January 2008, February 2008,
March 2008 or April 2008, the twenty-first day of such
calendar month (or the next succeeding Business Day if such day is
not a Business Day), beginning March 21, 2002 and (b) for
each of the calendar months of November 2007,
December 2007, January 2008, February 2008,
March 2008 and April 2008, the twenty-fifth day of such
calendar month (or the next succeeding Business Day if such day is
not a Business Day).
SECTION 3.
Representations and Warranties . Each of the Seller,
the Servicer and the Sub-Servicers hereby represents and warrants
to the Administrator and the Purchasers as follows:
(a)
Representations and Warranties . The representations and
warranties made by it in the Transaction Documents are true and
correct as of the date hereof (unless stated to relate
solely to an
earlier date, in which case such representations or warranties were
true and correct as of such earlier date).
(b)
Enforceability . The execution and delivery by such Person
of this Amendment, and the performance of each of its obligations
under this Amendment and the Agreement, as amended hereby, are
within each of its corporate powers and have been duly authorized
by all necessary corporate action on its part.
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