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Exhibit
10.36
EXECUTION
COPY
[CONSOL]
THIRD AMENDMENT TO AMENDED
AND RESTATED
RECEIVABLES PURCHASE
AGREEMENT
THIS THIRD AMENDMENT TO
AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT (this “
Amendment ”), dated as of November 16, 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 various new sub-servicers
listed on the signature pages hereto (the “ New
Sub-Servicers ”), 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 (as amended, restated, supplemented or
otherwise modified, the “ Agreement ”) by and
among the Seller, the Servicer, the various Sub-Servicers, Conduit
Purchasers, Purchaser Agents and LC Participants party thereto, the
Administrator and the LC Bank; 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 The preamble to the
Agreement is hereby amended and restated in its entirety as
follows:
This AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT (as amended, supplemented or
otherwise modified from time to time, this “ Agreement
”) is entered into as of April 30, 2007, by and among
CNX FUNDING CORPORATION, a Delaware corporation, as seller (the
“ Seller ”), CONSOL ENERGY INC., a Delaware
corporation (“ CONSOL Energy ”), as initial
servicer (in such capacity, together with its successors and
permitted assigns in such capacity, the “ Servicer
”), the ORIGINATORS FROM TIME TO TIME PARTIES HERETO AS
SUB-SERVICERS (each, a “ Sub-Servicer ”), the
CONDUIT PURCHASERS FROM TIME TO TIME PARTIES HERETO (each, a
“ Conduit Purchaser ”), the PURCHASER AGENTS
FROM TIME TO TIME PARTIES HERETO (each, a “ Purchaser
Agent ”), THE FINANCIAL
INSTITUTIONS FROM TIME TO
TIME PARTIES HERETO AS LC PARTICIPANTS (each together with their
successors and permitted assigns in such capacity, an “ LC
Participant ”), and PNC BANK, NATIONAL ASSOCIATION, a
national banking association (“ PNC ”), as
Purchaser Agent for Market Street, and as administrator for the
Conduit Purchasers (in such capacity, together with its successors
and assigns in such capacity, the “ Administrator
”) and as issuer of Letters of Credit (in such capacity,
together with its successors and assigns in such capacity, the
“ LC Bank ”) and each of the other members of
each Purchaser Group party hereto or that become parties hereto by
executing an Assumption Agreement or a Transfer
Supplement.
2.2 Clause (i)
of Section 4.1(d) of the Agreement is hereby
amended and restated in its entirety as follows:
(i) each such Sub-Servicer by
its signature hereto or in any applicable Joinder Agreement hereby
agrees in writing to perform the duties and obligations of the
Servicer pursuant to the terms hereof,
2.3 The following new
Section 6.1A is hereby inserted after
Section 6.1 of the Agreement:
Section 6.1A
Amendment or Termination of UCC Financing Statements
.
Notwithstanding any other
provision set forth herein or in any other Transaction Document, in
connection with the sale of any real property with respect to which
any UCC Financing Statement has been filed pursuant hereto or
pursuant to the Sale Agreement in favor of the Seller and assigned
to the Administrator or in favor of the Administrator (each such
UCC Financing Statement, a “ Filed Financing Statement
”), so long as no Termination Event has occurred and is
continuing, Seller or Servicer may, without the consent of the
Administrator, the Purchasers or the Purchaser Agents, either
(i) if such sale is of real property to which a Receivable
relates or is of real property to which no Receivable relates but a
Receivable has related thereto during the prior three calendar
months, amend any such Filed Financing Statement related to such
real property to exclude receivables, and the goods and other
property related thereto, arising from such real property from and
after the date of sale of such real property to a party who is not
the Seller or an Originator and owed to parties other than Seller
or any Originator or (ii) if such sale is of real property to
which no Receivable relates during the prior three calendar months,
terminate such financing statement effective upon the sale of such
real property to a party who is not the Seller or an Originator.
Servicer shall give the Administrator (x) at least five days
prior written notice of any such amendment or termination and
(y) file-stamped copies of any such amendment or termination
as soon as practicable after the filing thereof.
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2.4 Exhibit I to the
Agreement is hereby amended by inserting in the appropriate
alphabetical order the following new definitions:
“ Joinder
Agreement ” has the meaning set forth in
Section 11.1 of the Sale Agreement.
“ MINER
Receivable ” means a Receivable that arises out of a
contractual obligation to reimburse an Originator’s estimated
cost incurred in connection with the Mine Improvement and New
Emergency Response Act of 2006 (MINER Act) or any related or
similar legislation or regulation.
2.5 The definition of
“Default Ratio” set forth in Exhibit I to the
Agreement is hereby amended and restated in its entirety as
follows:
“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 five
calendar months before such month (it being understood that,
beginning with the calendar month ending on June 30, 2007, no
MINER Receivables shall be included in the calculation of the
“Default Ratio”).
2.6 The definition of
“Delinquency Ratio” set forth in Exhibit I to
the Agreement is hereby amended and restated in its entirety as
follows:
“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
(it being understood and agreed that, beginning with the calendar
month ending on June 30, 2007, no MINER Receivables shall be
included in the calculation of the “Delinquency
Ratio”).
2.7 The definition of
“Eligible Receivables” set forth in Exhibit I to
the Agreement is hereby amended by (a) deleting the period at
the end of clause (u) and substituting in its place
the text “, and” and (b) inserting the following
new clause (v) as follows:
(v) that is not a MINER
Receivable.
2.8 The definition of
“Purchase Limit” set forth in Exhibit I to the
Agreement is hereby amended by deleting the amount
“$150,000,000” therein and substituting the amount
“$165,000,000” therefor.
2.9 The Commitments and Pro
Rata Shares of the Conduit Purchasers and LC Participants are
hereby amended to be the amounts set forth beneath such
party’s name on the signature pages hereto.
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2.10 Clause (f)
of Section 1 of Exhibit III to the
Agreement is hereby amended and restated in its entirety as
follows:
(f) [Reserved].
2.11 Clause (g) of
Section 2 of Exhibit III to the Agreement is
hereby amended by deleting the first sentence thereof.
2.12 Schedule I to the
Agreement is hereby amended and restated in its entirety as
Schedule I attached hereto.
2.13 Schedule III to
the Agreement is hereby amended and restated in its entirety as
Schedule III attached hereto.
2.14 The first paragraph of
Annex B to the Agreement is hereby amended and restated in
its entirety as follows:
Reference is hereby made to
the Amended and Restated Receivables Purchase Agreement, dated as
of April 30, 2007 (as heretofore amended, supplemented or
otherwise modified, the “ Receivables Purchase
Agreement ”), among CNX Funding Corporation, as Seller,
CONSOL Energy Inc., as Servicer, the Originators from time to time
parties thereto as Sub-Servicers, the Conduit Purchasers from time
to time parties thereto, the Purchaser Agents from time to time
parties thereto, the LC Participants from time to time parties
thereto and PNC Bank, National Association, as Administrator and as
LC Bank. Capitalized terms used in this Purchase Notice and not
otherwise defined herein shall have the meanings assigned thereto
in the Receivables Purchase Agreement.
2.15 The first paragraph of
Annex C to the Agreement is hereby amended and restated in
its entirety as follows:
Reference is hereby made to
the Amended and Restated Receivables Purchase Agreement, dated as
of April 30, 2007 (as heretofore amended, supplemented or
otherwise modified, the “ Receivables Purchase
Agreement ”), among CNX Funding Corporation, as Seller,
CONSOL Energy Inc., as Servicer, the Originators from time to time
parties thereto as Sub-Servicers, the Conduit Purchasers from time
to time parties thereto, the Purchaser Agents from time to time
parties thereto, the LC Participants from time to time parties
thereto and PNC Bank, National Association, as Administrator and as
LC Bank. Capitalized terms used in this Paydown Notice and not
otherwise defined herein shall have the meanings assigned thereto
in the Receivables Purchase Agreement.
2.16 The first paragraph of
Annex D to the Agreement is hereby amended and restated in
its entirety as follows:
This Compliance Certificate
is furnished pursuant to that certain Amended and Restated
Receivables Purchase Agreement, dated as of April 30, 2007
among CNX Funding Corporation, as Seller (the “ Seller
”), CONSOL Energy Inc., as Servicer (the “
Servicer ”), the Originators from time to time parties
thereto as Sub-Servicers, the Conduit Purchasers from time to time
parties thereto, the Purchaser Agents from time to time parties
thereto, the various LC Participants from time to
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time parties thereto and PNC
Bank, National Association, as the Administrator (the “
Administrator ”) and as the LC Bank (as amended,
restated, supplemented or otherwise modified, the “
Agreement ”). Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to them
in the Agreement.
2.17 The first paragraph of
Annex E to the Agreement is hereby amended and restated in
its entirety as follows:
Reference is hereby made to
the Amended and Restated Receivables Purchase Agreement, dated as
of April 30, 2007 (as heretofore amended, supplemented or
otherwise modified, the “ Receivables Purchase
Agreement ”), among CNX Funding Corporation, as Seller,
CO
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