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Exhibit
10.35
EXECUTION
COPY
[CONSOL]
SECOND AMENDMENT TO AMENDED
AND RESTATED
RECEIVABLES PURCHASE
AGREEMENT
THIS SECOND AMENDMENT TO
AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT (this “
Amendment ”), dated as of July 27, 2007, is
entered into among CNX FUNDING CORPORATION, (the “
Seller ”), CONSOL ENERGY INC. (“ CONSOL
Energy ”), as the initial Servicer (in such capacity, the
“ Servicer ”), the Conduit Purchasers listed on
the signature pages hereto, the Purchaser Agents listed on the
signature pages hereto, the LC Participants listed on the signature
pages hereto and PNC BANK, NATIONAL ASSOCIATION, as Administrator
(in such capacity, the “ Administrator ”) and as
LC Bank (in such capacity, the “ LC Bank
”).
RECITALS
1. Reference is made to that
certain Amended and Restated Receivables Purchase Agreement, dated
as of April 30, 2007 (the “ Agreement ”) by
and among the parties hereto and the various Sub-Servicers from
time to time party thereto; 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. Amendment to
the Agreement . Section 4 of Exhibit IV
to the Agreement is hereby amended by deleting each reference to
the date “August 1, 2007” set forth therein and
substituting the date “September 3, 2007”
therefor.
SECTION 3.
Representations and Warranties . Each of the Seller,
CONSOL Energy and the Servicer hereby represents and warrants to
the Administrator, the Purchaser Agents and the Purchasers as
follows:
(a) Representations and
Warranties . The representations and warranties made by it in
the Transaction Documents are true and correct as of the date
hereof (unless stated to relate solely to an earlier date, in which
case such representations or warranties were true and correct as of
such earlier date).
(b) Enforceability .
The execution and delivery by such Person of this Amendment, and
the performance of each of its obligations under this Amendment and
the Agreement, as amended hereby, are within each of its corporate
powers and have been duly authorized by all necessary corporate
action on its part. This Amendment and the Agreement, as amended
hereby, are such Person’s valid and legally binding
obligations, enforceable in accordance with its terms.
(c) No Default . Both
before and immediately after giving effect to this Amendment and
the transactions contemplated hereby, no Termination Event or
Unmatured Termination Event exists or shall exist.
SECTION 4. Effect of
Amendment . All provisions of the Agreement, as expressly
amended and modified by this Amendment, shall remain in full force
and effect. After this Amendment becomes effective, all references
in the Agreement (or in any other Transaction Document) to
“this Agreement”, “hereof”,
“herein” or words of similar effect referring to the
Agreement shall be deemed to be references to the Agreement as
amended by this Amendment. This Amendment shall not be deemed,
either expressly or impliedly, to waive, amend or supplement any
provision of the Agreement other than as set forth
herein.
SECTION 5.
Effectiveness . This Amendment shall become effective
as of the date hereof upon receipt by the Administrator
of:
(a) counterparts of this
Amendment (whether by facsimile or otherwise) executed by each of
the other parties hereto; and
(b) such other documents and
instrume
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