SEVENTH AMENDMENT TO AMENDED AND
RESTATED
RECEIVABLES PURCHASE AGREEMENT
THIS SEVENTH
AMENDMENT TO AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT
(this “ Amendment ”), dated as of May 12,
2009, 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. For purposes of this Amendment, the “Name
Change Effective Date” shall mean the effective date of the
change in name of COALTRADE International, LLC to Peabody COALTRADE
International (CTI), LLC (the “ Name Change ”)
as set forth in a certificate of amendment to COALTRADE
International, LLC’s certificate of formation and duly filed
with the Secretary of State of the State of Delaware.
SECTION 2.
Amendments to the Agreement .
2.1 Effective as
of the Effective Date (as defined below):
(a)
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.
(b) 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
Portion of Capital of the Purchased Interest 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 , that the “Alternate Rate” for
any day while a Termination Event exists shall be an interest rate
equal to the greater of (i) 3.00% per annum above the Base
Rate in effect on such day and (ii) the “Alternate
Rate” as calculated in clause (a) above.
(c) 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:
Notwithstanding
the foregoing, the “CP Rate” for any day while a
Termination Event exists shall be an interest rate equal to the
greater of (a) 3.00% above the Base Rate in effect on such day
and (b) the Alternate Rate as calculated in the definition
thereof.
(d) The
definition of “Eligible Receivables” set forth in
Exhibit I to the Agreement is hereby amended by
(a) deleting the “and” at the end of clause
(p) in the definition thereof; (b) deleting the phrase
“quality accruals.” at the end of clause (q) of
the definition thereof and substituting the phrase “quality
accruals”; and” therefor; and (c) inserting the
following new clause (r) as follows:
(r) the Obligor of
which is not the Mohave Project.
(e)
Clause (a) of the definition of “Facility Termination
Date” set forth in Exhibit I to the Agreement is
hereby amended and restated in its entirety as follows:
(f) The
definition of “Special Obligor” set forth in
Exhibit I to the Agreement is hereby amended and
restated in its entirety as follows:
“ Special
Obligor ” means the Navajo Project, for so long as, with
respect to such Navajo Project, (a) the agreement among the
project participants requires that upon the default of any
participant, the non-
-2-
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 (a) above is true, complete and correct.
The Navajo Project shall be deemed to be a “ Special Group
A Obligor ” hereunder for so long as such Navajo Project
has at least one project participant with the rating of a Group A
Obligor; the Navajo Project shall be deemed to be a “
Special Group B Obligor ” hereunder for so long as
such Navajo 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 Navajo Project shall be deemed to
be a “ Special Group C Obligor ” hereunder for
so long as such Navajo 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
Navajo Project shall be deemed to be a “ Special Group D
Obligor ” hereunder for so long as such Navajo Project
has no project participants with the rating of a Group A Obligor, a
Group B Obligor or a Group C Obligor.
(g) The
definition of “UCP 500” set forth in
Exhibit I to the Agreement is hereby amended and
restated in its entirety as follows:
“ UCP
600 ” has the meaning set forth in
Section 1.12 of the Agreement.
(h)
Clause (o) of Section 2 of
Exhibit III to the Agreement is hereby amended and
restated in its entirety as follows:
(i) The
first sentence set forth in clause (b) of
Section 2 of Exhibit IV to the Agreement is
hereby amended and restated in its entirety as follows:
The Servicer
and, to the extent that it ceases to be the Servicer, Peabody,
(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 applicable UCC) and the office where it keeps
its records concerning the Receivables at the address of the
Servicer set forth on Schedule IV and (ii) shall
cause Peabody Holding Company, LLC and each Originator to keep its
state of formation (as such term is defined in the applicable UCC)
and the office where it keeps its records concerning the
Receivables at the applicable address set forth on
Schedule IV , in the case of Peabody Holding
Co
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