EXHIBIT 10.69
FIRST AMENDMENT TO RECEIVABLES PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO RECEIVABLES PURCHASE AGREEMENT (the
"Amendment") dated as of February 27, 2003, is made by and among P & L
Receivables Company, LLC, as seller (the "Seller"), Peabody Energy Corporation,
as initial Servicer (the "Servicer"), Big Sky Coal Company, Caballo Coal
Company, Eastern Associated Coal Corp., Peabody Coal Sales Company, Peabody Coal
Company, Peabody Western Coal Company, Powder River Coal Company, Peabody
Holding Company, Inc., Peabody Coaltrade, Inc., as Sub-Servicers, Market Street
Funding Corporation, as Issuer (the "Issuer"), and PNC BANK, NATIONAL
ASSOCIATION, as administrator (the "Administrator").
WITNESSETH:
WHEREAS, the parties hereto are parties to that certain Receivables
Purchase Agreement dated as of February 20, 2002, by and among the Seller, the
Servicer, the Sub-Servicers, the Issuer, and the Administrator (the "Receivables
Purchase Agreement"), and desire to amend the terms thereof as set forth herein.
NOW, THEREFORE, the parties hereto, in consideration of their mutual
covenants and agreements hereinafter set forth and intending to be legally bound
hereby, covenant and agree as follows:
1. Definitions.
Defined terms used herein unless otherwise defined herein shall have
the meanings ascribed to them in the Receivables Purchase Agreement as amended
by this Amendment.
2. Amendments to Receivables Purchase Agreement.
(a) Exhibit I, Definition of Special Obligor. The definition of
Special Obligor set forth in Exhibit I of the Receivables Purchase Agreement is
hereby amended and restated as follows:
""Special Obligor" means each of the Navajo Project and the Mohave Project
(each, a "Project"), for so long as, with respect to each Project, (a) the
agreement among the project participants requires that upon the default of any
participant, the non-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. Each
Project shall be deemed to be a "Special Group A Obligor" hereunder for so long
as such Project has at least one project participant with the rating of a Group
A Obligor; each Project shall be deemed to be a "Special Group B Obligor"
hereunder for so long as such 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); each Project shall be deemed to be a "Special Group C
Obligor" hereunder for so long as such 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 each
Project shall be deemed to be a "Special Group D Obligor" hereunder for so long
as such Project has no project participants with the rating of a Group A
Obligor, a Group B Obligor or a Group C Obligor."
(b) Exhibit III, Subsection 2(p). A new Subsection 2(p) is hereby
added to Exhibit III of the Receivables Purchase Agreement as follows:
"(p) The agreement among the project participants of the
Navajo Project requires that upon the default of any participant, the
non-defaulting participants are required to cure any such default."
(c) Exhibit IV, Subsection 2(k). Subsection 2(k) of Exhibit IV of
the Receivables Purchase Agreement is hereby amended and restated as follows:
"(k) Mohave Project and Navajo Project. Peabody shall notify
the Administrator if (1) a Responsible Officer of Peabody obtains actual
knowledge that the documents and agreements governing the Mohave Project are
amended in any manner which would cause the representations and warranties set
forth in Section 2(o) to be incorrect or untrue in any respect, or (2) a
Responsible Officer of Peabody obtains actual knowledge that the documents and
agreements governing the Navajo Project are amended in any manner which would
cause the representations and warranties set forth in Section 2(p) to be
incorrect or untrue in any respect."
3. Representations and Warranties. Each of the Seller, the Servicer, and the
Sub-Servicers hereby represents and warrants to the Issuer and
Administrator as follows:
A. The representations and warranties of the Seller, the
Servicer, and the Sub-Servicers contained in the Receivables Purchase Agreement
are true and correct on and as of the date hereof with the same force and effect
as though made by the Seller, the Servicer, and the Sub-Servicers on such date,
except to the extent that any such representation or warranty expressly relates
solely to a previous date; and
B. Each of the Seller, the Servicer, and the Sub-Servicers is in
compliance with all terms, conditions, provisions, and covenants contained in
the Receivables Purchase Agreement and the execution, delivery, and performance
of this Amendment have been duly authorized by all necessary corporate action,
require no governmental approval, and will neither contravene, conflict with,
nor result in the breach of any law, charter, articles, or certificate of
incorporation, bylaws, or agreement governing or binding upon any of the Seller,
the Servicer, and the Sub-Servicers or any of their property; and, no Unmatured
Termination Event or Termination Event has occurred and is continuing or would
result from the making of this Amendment.
4. Conditions of Effectiveness of this Amendment. The effectiveness of this
Amendment is expressly conditioned upon satisfaction of each of the
following conditions precedent:
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A. Legal Details; Counterparts. All legal details and proceedings in
connection with the transactions contemplated by this Amendment shall be in form
and substance satisfactory to the Administrator, and the Administrator shall
have received from the Seller, the Issuer, the Servicer and the Sub-Servicers
all such other counterpart originals or certified or other copies of such
documents and proceedings in connection with such transactions, in form and
substance satisfactory to the Administrator.
B. No Default. As of the date hereof, no Unmatured Termination Event or
Termination Event has occurred and is continuing and each of the Seller, the
Servicer, and the Sub-Servicers by executing this Amendment confirms the same
and also confirms the accuracy of the representations and warranties in Section
3 above.
5. Amendment. The Receivables Purchase Agreement referred to herein and
certain of the exhibits and schedules thereto are hereby amended in accordance
with the terms hereof and any reference to the Receivables Purchase Agreement in
any document, instrument, or agreement shall hereafter mean and include the
Receivables Purchase Agreement, including such schedules and exhibits, as
amended hereby.
6. Force and Effect. Each of the Seller, the Servicer, and the Sub-Servicers
reconfirms, restates, and ratifies the Receivables Purchase Agreement, the
Transaction Documents and all other documents executed in connection therewith
except to the extent any such documents are expressly modified by this Amendment
and each of the Seller, the Servicer, and the Sub-Servicers confirms that all
such documents have remained in full force and effect since the date of their
execution.
7. No Waiver. Except as expressly provided herein, this Amendment does not
and shall not be deemed to constitute a waiver by Issuer of any Termination
Event under the Receivables Purchase Agreement, or of any event which with the
passage of time or the giving of notice or both would constitute a Termination
Event.
9. Governing Law. This Amendment shall be deemed to be a contract under the
laws of the State of Illinois and for all purposes shall be governed by and
construed and enforced in accordance with the internal laws of the State of
Illinois without regard to its conflict of laws principles.
10. Counterparts. This Amendment may be signed in any number of counterparts
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
11. Effective Date. This Amendment shall be effective as of and shall be dated
as of the date of satisfaction of all conditions set forth in Section 4 of this
Amendment.
[SIGNATURES BEGIN ON NEXT PAGE]
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[SIGNATURE PAGE 1 OF 6 TO FIRST AMENDMENT TO
RECEIVABLES PURCHASE AGREEMENT]
IN WITNESS WHEREOF and intending to be legally bound hereby, the parties
hereto have executed this Amendment as of the date first above written.
P & L RECEIVABLES COMPANY, LLC
as Seller
By: /s/ Steven F. Schaab
-----------------------
Name: Steven F. Schaab
Title: Vice President
PEABODY ENERGY CORPORATION,
as initial Servicer
By: /s/ Steven F. Schaab
-----------------------
Name: Steven F. Schaab
Title: Vice President
[SIGNATURE PAGE 2 OF 6 TO FIRST AMENDMENT TO
RECEIVABLES PURCHASE AGREEMENT]
BIG SKY COAL COMPANY,
as Sub-Servicer
By: /s/ Steven F. Schaab
-----------------------
Name: Steven F. Schaab
Title: Vice President
CABALLO COAL COMPANY,
as Sub-Servicer
By: /s/ Steven F. Schaab
-----------------------
Name: Steven F. Schaab
Title: Vice President
EASTERN ASSOCIATED COAL CORP.,
as Sub-Servicer
By: /s/ Steven F. Schaab
-----------------------
Name: Steven F. Schaab
Title: Vice President
PEABODY COAL SALES COMPANY,
as Sub-Servicer
By: /s/ Steven F. Schaab
-----------------------
Name: Steven F. Schaab
Title: Vice President
[SIGNATURE PAGE 3 OF 6 TO FIRST AMENDMENT TO
RECEIVABLES PURCHASE AGREEMENT]
PEABODY COAL COMPANY,
as Sub-Servicer
By: /s/ Steven F. Schaab
-----------------------
Name: Steven F. Schaab
Title: Vice President
PEABODY WESTERN COAL COMPANY,
as Sub-Servicer
By: /s/ Steven F. Schaab
-----------------------
Name: Steven F. Schaab
Title: Vice President
POWDER RIVER COAL COMPANY,
as Sub-Servicer
By: /s/ Steven F. Schaab
-----------------------
Name: Steven F. Schaab
Title: Vice President
PEABODY HOLDING COMPANY, INC.
as Sub-Servicer
By: /s/ Steven F. Schaab
-----------------------
Name: Steven F. Schaab
Title: Vice President
[SIGNATURE PAGE 4 OF 6 TO FIRST AMENDMENT TO
RECEIVABLES PURCHASE AGREEMENT]
PEABODY COALTRADE, INC.
as Sub-Servicer
By: /s/ Steven F. Schaab
-----------------------
Name: Steven F. Schaab
Title: Vice President
[SIGNATURE PAGE 5 OF 6 TO FIRST AMENDMENT TO
RECEIVABLES PURCHASE AGREEMENT]
MARKET STREET FUNDING CORPORATION,
as Issuer
By: /s/ Evelyn Echevarria
-----------------------
Name: Evelyn Echevarria
Title: Vice President
[SIGNATURE PAGE 6 OF 6 TO FIRST AMENDMENT TO
RECEIVABLES PURCHASE AGREEMENT]
PNC BANK, NATIONAL ASSOCIATION,
as Administrator
By: /s/ John Smathers
-----------------------
Name: John Smathers
Title: Vice President