FOURTH AMENDMENT TO
RECEIVABLES PURCHASE AGREEMENT
THIS FOURTH
AMENDMENT TO RECEIVABLES PURCHASE AGREEMENT (this “
Amendment ”), dated as of March 31, 2009, is
entered into among ARCH RECEIVABLE COMPANY, LLC (the “
Seller ”), ARCH COAL SALES COMPANY, INC. (the “
Servicer ”), MARKET STREET FUNDING LLC (the “
Issuer ”), the various financial institutions party to
the Agreement (as defined below) as LC Participants (the “
LC Participants ”), and PNC BANK, NATIONAL
ASSOCIATION, as Administrator (the “ Administrator
”) and as LC Bank (the “ LC Bank
”).
1. The
parties hereto are parties to the Receivables Purchase Agreement,
dated as of February 3, 2006 (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 .
2.1 Clause
(b) of Section 1.12 of the Agreement is hereby
amended and restated in its entirety as follows:
(b) Each Letter of
Credit shall, among other things, (i) provide for the payment
of sight drafts or other written demands for payment when presented
for honor thereunder in accordance with the terms thereof and when
accompanied by the documents described therein and (ii) have
an expiry date not later than twelve (12) months after such Letter
of Credit’s date of issuance, extension or renewal, as the
case may be, and in no event later than twelve (12) months
after the Facility Termination Date. Each Letter of Credit shall be
subject either to the Uniform Customs and Practice for Documentary
Credits (2007 Revision), International Chamber of Commerce
Publication No. 600, and any amendments or revisions thereof
adhered to by the LC Bank (“ UCP 600 ”) or the
International Standby Practices (ISP98-International Chamber of
Commerce Publication Number 590), and any amendments or revisions
thereof adhered to by the LC Bank (the “ ISP98 Rules
”), as determined by the LC Bank.
2.2 The definition
of “Alternate Rate” set forth in Exhibit I
to the Agreement is hereby amended and restated in its entirety as
follows:
“
Alternate Rate ” for any Settlement Period for any
Capital (or portion thereof) funded by any Purchaser other than
through the issuance of Notes means an interest rate per annum
equal to: (a) 3.25% per annum above the Euro-Rate for such
Settlement Period, or, in the sole discretion of the applicable
Purchaser (b) the Base Rate for such Settlement Period;
provided, however, that the “Alternate Rate” for any
day while a Termination Event or an Unmatured Termination Event
exists shall be an interest rate equal to the greater of
(i) 3.0% per annum above the Base Rate as in effect on such
day and (ii) the “Alternate Rate” as calculated in
clause (a) above.
2.3 The definition
of “Concentration Reserve Percentage” set forth in
Exhibit I to the Agreement is hereby amended and
restated in its entirety as follows:
“
Concentration Reserve Percentage ” means, at any time,
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 such Obligor), (ii) the sum
of the three (3) largest Group C Obligor Receivables balances
(up to the Concentration Percentage for each such Obligor),
(iii) the sum of the two (2) largest Group B Obligor
Receivables balance (up to the Concentration Percentage for each
such Obligor), and (iv) the largest Group A Obligor
Receivables balance (up to the Concentration Percentage for such
Obligor), divided by (b) the sum of the outstanding balances
of all Eligible Receivables.
2.4 The last
sentence of the definition of “CP Rate” set forth in
Exhibit I to the Agreement is hereby amended and
restated in its entirety as follows:
The “CP
Rate” for any day while a Termination Event or an Unmatured
Termination Event exists
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