THIRD SUPPLEMENTAL SENIOR SUBORDINATED NOTE INDENTURE
THIRD SUPPLEMENTAL SENIOR SUBORDINATED NOTE INDENTURE (this "Supplemental
Senior Subordinated Note Indenture"), dated as of June 30, 1999, among Highland
Mining Company, a Delaware corporation, Peabody Southwestern Coal Company, a
Delaware corporation (together, the "Guaranteeing Subsidiaries"), each a
subsidiary of P&L Coal Holdings Corporation (or its permitted successor), a
Delaware corporation (the "Company"), the Company, the other Senior Subordinated
Note Guarantors (as defined in the Senior Subordinated Note Indenture referred
to herein) and State Street Bank and Trust Company, as Senior Subordinated Note
Trustee under the Senior Subordinated Note Indenture referred to below (the
"Senior Subordinated Note Trustee").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the Senior
Subordinated Note Trustee a Senior Subordinated Note Indenture (the "Senior
Subordinated Note Indenture"), dated as of May 18, 1998 providing for the
issuance of an aggregate principal amount of up to $650.0 million of 9-5/8%
Senior Subordinated Notes due 2008 (the "Senior Subordinated Notes");
WHEREAS, the Senior Subordinated Note Indenture provides that under certain
circumstances the Guaranteeing Subsidiaries shall execute and deliver to the
Senior Subordinated Note Trustee a Supplemental Senior Subordinated Note
Indenture pursuant to which the Guaranteeing Subsidiaries shall each
unconditionally guarantee all of the Company's Obligations under the Senior
Subordinated Notes and the Senior Subordinated Note Indenture on the terms and
conditions set forth herein (the "Subordinated Subsidiary Guarantee"); and
WHEREAS, pursuant to Section 9.01 of the Senior Subordinated Note
Indenture, the Senior Subordinated Note Trustee is authorized to execute and
deliver this Supplemental Senior Subordinated Note Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Guaranteeing Subsidiaries and the Senior Subordinated Note Trustee mutually
covenant and agree for the equal and ratable benefit of the Holders of the
Senior Subordinated Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Senior Subordinated Note
Indenture.
2. AGREEMENT TO GUARANTEE. Each of the Guaranteeing Subsidiaries
hereby agrees as follows:
(a) Along with all Senior Subordinated Note Guarantors named in
the Senior Subordinated Note Indenture, to jointly and severally
Guarantee to each Holder of a Senior Subordinated Note authenticated
and delivered by the Senior Subordinated Note Trustee and to the
Senior Subordinated Note Trustee and its successors and assigns,
irrespective of the validity and enforceability of the Senior
Subordinated Note Indenture, the Senior Subordinated Notes or the
obligations of the Company hereunder or thereunder, that:
(i) the principal of and interest on the Senior Subordinated
Notes will be promptly paid in full when due, whether at
maturity, by acceleration, redemption or otherwise, and interest
on the overdue principal of and interest on the Senior
Subordinated Notes, if any, if lawful, and all other obligations
of the Company to the Holders or the Senior Subordinated Note
Trustee hereunder or thereunder will be promptly paid in full or
performed, all in accordance with the terms hereof and thereof;
and
(ii) in case of any extension of time of payment or renewal
of any Senior Subordinated Notes or any of such other
obligations, that same will be promptly paid in full when due or
performed in accordance with the terms of the extension or
renewal, whether at stated maturity, by acceleration or
otherwise. Failing payment when due of any amount so guaranteed
or any performance so guaranteed for whatever reason, the Senior
Subordinated Note Guarantors shall be jointly and severally
obligated to pay the same immediately.
(b) The obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the
Senior Subordinated Notes or the Senior Subordinated Note Indenture,
the absence of any action to enforce the same, any waiver or consent
by any Holder of the Senior Subordinated Notes with respect to any
provisions hereof or thereof, the recovery of any judgment against the
Company, any action to enforce the same or any other circumstance
which might otherwise constitute a legal or equitable discharge or
defense of a Senior Subordinated Note Guarantor.
(c) The following is hereby waived: diligence presentment, demand
of payment, filing of claims with a court in the event of insolvency
or bankruptcy of the Company, any right to require a proceeding first
against the Company, protest, notice and all demands whatsoever.
(d) This Subordinated Subsidiary Guarantee shall not be
discharged except by complete performance of the obligations contained
in the Senior Subordinated Notes and the Senior Subordinated Note
Indenture.
(e) If any Holder or the Senior Subordinated Note Trustee is
required by any court or otherwise to return to the Company, the
Senior Subordinated Note Guarantors, or any custodian, Senior
Subordinated Note Trustee, liquidator or other similar official acting
in relation to either the Company or the Senior Subordinated Note
Guarantors, any amount paid by either to the Senior Subordinated Note
Trustee or such Holder, this Subordinated Subsidiary Guarantee, to the
extent theretofore discharged, shall be reinstated in full force and
effect.
(f) Neither of the Guaranteeing Subsidiaries shall be entitled to
any right of subrogation in relation to the Holders in respect of any
obligations guaranteed hereby until payment in full of all obligations
guaranteed hereby.
(g) As between the Senior Subordinated Note Guarantors, on the
one hand, and the Holders and the Senior Subordinated Note Trustee, on
the other hand, (x) the maturity of the obligations guaranteed hereby
may be accelerated as provided in Article 6 of the Senior Subordinated
Note Indenture for the purposes of this Subordinated Subsidiary
Guarantee, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations guaranteed
hereby, and (y) in the event of any declaration of acceleration of
such obligations as provided in Article 6 of the Senior Subordinated
Note Indenture, such obligations (whether or not due and payable)
shall forthwith become due and payable by the Senior Subordinated Note
Guarantors for the purpose of this Subordinated Subsidiary Guarantee.
(h) The Senior Subordinated Note Guarantors shall have the right
to seek contribution from any non-paying Senior Subordinated Note
Guarantor so long as the exercise of such right does not impair the
rights of the Holders under the Subordinated Subsidiary Guarantee.
(i) Pursuant to Section 11.03 of the Senior Subordinated Note
Indenture, the obligations of each Guaranteeing Subsidiary hereunder
and under Article 11 of the Senior Subordinated Note Indenture will be
limited to the maximum amount as will, after giving effect to any
maximum amount and any other contingent and fixed liabilities that are
relevant under any applicable Bankruptcy or fraudulent conveyance
laws, and after giving effect to any collections from, rights to
receive contribution from or payments made by or on behalf of any
other Senior Subordinated Note Guarantor in respect of the obligations
of such other Senior Subordinated Note Guarantor under Article 11 of
the Senior Subordinated Note Indenture, result in the obligations of
such Senior Subordinated Note Guarantor under its Subordinated
Subsidiary Guarantee not constituting a fraudulent transfer or
conveyance.
3. EXECUTION AND DELIVERY. Each Guaranteeing Subsidiary agrees that
the Subordinated Subsidiary Guarantees shall remain in full force and
effect notwithstanding any failure to endorse on each Senior Subordinated
Note a notation of such Subordinated Subsidiary Guarantee.
4. GUARANTEEING SUBSIDIARIES MAY CONSOLIDATE, ETC. ON CERTAIN TERMS.
(a) Neither of the Guaranteeing Subsidiary may consolidate with
or merge with or into (whether or not such Senior Subordinated Note
Guarantor is the surviving Person) another corporation, Person or
entity whether or not affiliated with such Senior Subordinated Note
Guarantor unless:
(i) subject to Section 11.05 of the Senior Subordinated Note
Indenture, the Person formed by or surviving any such
consolidation or merger (if other than a Senior Subordinated Note
Guarantor or the Company) unconditionally assumes all the
obligations of such Senior Subordinated Note Guarantor, pursuant
to a supplemental Senior Subordinated Note Indenture in form and
substance reasonably satisfactory to the Senior Subordinated Note
Trustee, under the Senior Subordinated Notes, the Senior
Subordinated Note Indenture and the Subordinated Subsidiary
Guarantee on the terms set forth herein or therein; and
(ii) immediately after giving effect to such transaction, no
Default or Event of Default exists.
(b) In case of any such consolidation, merger, sale or conveyance
and upon the assumption by the successor corporation, by supplemental
Senior Subordinated Note Indenture, executed and delivered to the
Senior Subordinated Note Trustee and satisfactory in form to the
Senior Subordinated Note Trustee, of the Subordinated Subsidiary
Guarantee endorsed upon the Senior Subordinated Notes and the due and
punctual performance of all of the covenants and conditions of the
Senior Subordinated Note Indenture to be performed by the Senior
Subordinated Note Guarantor, such successor corporation shall succeed
to and be substituted for the Senior Subordinated Note Guarantor with
the same effect as if it had been named herein as a Senior
Subordinated Note Guarantor. Such successor corporation thereupon may
cause to be signed any or all of the Subordinated Subsidiary
Guarantees to be endorsed upon all of the Senior Subordinated Notes
issuable hereunder which theretofore shall not have been signed by the
Company and delivered to the Senior Subordinated Note Trustee. All the
Subordinated Subsidiary Guarantees so issued shall in all respects
have the same legal rank and benefit under the Senior Subordinated
Note Indenture as the Subordinated Subsidiary Guarantees theretofore
and thereafter issued in accordance with the terms of the Senior
Subordinated Note Indenture as though all of such Subordinated
Subsidiary Guarantees had been issued at the date of the execution
hereof.
(c) Except as set forth in Articles 4 and 5 of the Senior
Subordinated Note Indenture, and notwithstanding clauses (a) and (b)
above, nothing contained in the Senior Subordinated Note Indenture or
in any of the Senior Subordinated Notes shall prevent any
consolidation or merger of a Senior Subordinated Note Guarantor with
or into the Company or another Senior Subordinated Note Guarantor, or
shall prevent any sale or conveyance of the property of a Senior
Subordinated Note Guarantor as an entirety or substantially as an
entirety to the Company or another Senior Subordinated Note Guarantor.
5. RELEASES.
(a) In the event of a sale or other disposition of all of the
assets of any Senior Subordinated Note Guarantor, by way of merger,
consolidation or otherwise, or a sale or other disposition of all to
the capital stock of any Senior Subordinated Note Guarantor, then such
Senior Subordinated Note Guarantor (in the event of a sale or other
disposition, by way of merger, consolidation or otherwise, of all of
the capital stock of such Senior Subordinated Note Guarantor) or the
corporation acquiring the property (in the event of a sale or other
disposition of all or substantially all of the assets of such Senior
Subordinated Note Guarantor) will be released and relieved of any
obligations under its Subordinated Subsidiary Guarantee; provided that
the Net Proceeds of such sale or other disposition are applied in
accordance with the applicable provisions of the Senior Subordinated
Note Indenture, including without limitation Section 4.10 of the
Senior Subordinated Note Indenture. Upon delivery by the Company to
the Senior Subordinated Note Trustee of an Officers' Certificate and
an Opinion of Counsel to the effect that such sale or other
disposition was made by the Company in accordance with the provisions
of the Senior Subordinated Note Indenture, including without
limitation Section 4.10 of the Senior Subordinated Note Indenture, the
Senior Subordinated Note Trustee shall execute any documents
reasonably required in order to evidence the release of any Senior
Subordinated Note Guarantor from its obligations under its
Subordinated Subsidiary Guarantee.
(b) Any Senior Subordinated Note Guarantor not released from its
obligations under its Subordinated Subsidiary Guarantee shall remain
liable for the full amount of principal of and interest on the Senior
Subordinated Notes and for the other obligations of any Senior
Subordinated Note Guarantor under the Senior Subordinated Note
Indenture as provided in Article 11 of the Senior Subordinated Note
Indenture.
6. NO RECOURSE AGAINST OTHERS. No past, present or future director,
officer, employee, incorporator, stockholder or agent of either
Guaranteeing Subsidiary, as such, shall have any liability for any
obligations of the Company or any Guaranteeing Subsidiary under the Senior
Subordinated Notes, any Subordinated Subsidiary Guarantees, the Senior
Subordinated Note Indenture or this Supplemental Senior Subordinated Note
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of the Senior Subordinated Notes
by accepting a Senior Subordinated Note waives and releases all such
liability. The waiver and release are part of the consideration for
issuance of the Senior Subordinated Notes. Such waiver may not be effective
to waive liabilities under the federal securities laws and it is the view
of the Commission that such a waiver is against public policy.
7. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK
SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL SENIOR SUBORDINATED
NOTE INDENTURE BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF
CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
8. COUNTERPARTS The parties may sign any number of copies of this
Supplemental Senior Subordinated Note Indenture. Each signed copy shall be
an original, but all of them together represent the same agreement.
9. EFFECT OF HEADINGS. The Section headings herein are for convenience
only and shall not affect the construction hereof.
10. THE SENIOR SUBORDINATED NOTE TRUSTEE. The Senior Subordinated Note
Trustee shall not be responsible in any manner whatsoever for or in respect
of the validity or sufficiency of this Supplemental Senior Subordinated
Note Indenture or for or in respect of the recitals contained herein, all
of which recitals are made solely by the Guaranteeing Subsidiaries and the
Company.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Senior
Subordinated Note Indenture to be duly executed and attested, all as of the date
first above written.
Dated:
AFFINITY MINING COMPANY
/s/ X.X. Xxxxxx
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Name: X.X. Xxxxxx
Title: Vice President & Treasurer
ARID OPERATIONS, INC.
/s/ Xxxxxx Xxxxxxx
------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President, Secretary & General Counsel
BIG SKY COAL COMPANY
/s/ X.X. Xxxxxx
------------------------------------------
Name: X.X. Xxxxxx
Title: Treasurer & Asst. Secretary
BLACKROCK FIRST CAPITAL CORPORATION
/s/ X.X. Xxxxxx
------------------------------------------
Name: X.X. Xxxxxx
Title: Vice President & Treasurer
BLUEGRASS COAL COMPANY
/s/ Xxxx Xxxx
------------------------------------------
Name: Xxxx Xxxx
Title: President
CABALLO COAL COMPANY
/s/ Xxxxxxx Xxxxxxxx
------------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
XXXXXXX COAL COMPANY
/s/ X.X. Xxxxxx
------------------------------------------
Name: X.X. Xxxxxx
Title: Vice President & Treasurer
COAL PROPERTIES CORP.
/s/ X.X. Xxxx
------------------------------------------
Name: X.X. Xxxx
Title: President
COLONY BAY COAL COMPANY
By: Xxxxxxx Coal Company
/s/ X.X. Xxxxxx
------------------------------------------
Name: X.X. Xxxxxx
Title: Vice President & Treasurer
XXXX MOUNTAIN COAL COMPANY
/s/ X.X. Xxxx
------------------------------------------
Name: X.X. Xxxx
Title: President
COTTONWOOD LAND COMPANY
/s/ X.X. Xxxxxx
------------------------------------------
Name: X.X. Xxxxxx
Title: Vice President & Treasurer
DARIUS GOLD MINE, INC.
/s/ Xxxxxx Xxxxxxx
------------------------------------------
Name: Colon Xxxxxxx
Title: Vice President, Secretary & General Counsel
EACC CAMPS, INC.
/s/ X.X. Xxxxxx
------------------------------------------
Name: X.X. Xxxxxx
Title: Vice President & Treasurer
EASTERN ASSOCIATED COAL CORP
/s/ X.X. Xxxxxx
------------------------------------------
Name: X.X. Xxxxxx
Title: Vice President & Treasurer
EASTERN ROYALTY CORP.
/s/ X.X. Xxxxxx
------------------------------------------
Name: X.X. Xxxxxx
Title: Vice President & Treasurer
XXXXX FINANCE COMPANY
/s/ X.X. Xxxxxx
------------------------------------------
Name: X.X. Xxxxxx
Title: President
GOLD FIELDS CHILE, S.A
/s/ Xxxxxx Xxxxxxx
------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President, Secretary & General Counsel
GOLD FIELDS MINING CORPORATION
/s/ Xxxxxx Xxxxxxx
------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President, Secretary & General Counsel
GOLD FIELDS OPERATING CO.-XXXXX
/s/ Xxxxxx Xxxxxxx
------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President, Secretary & General Counsel
GRAND EAGLE MINING, INC.
/s/ Xxxx Xxxx
------------------------------------------
Name: Xxxx Xxxx
Title: President
HAYDEN GULCH TERMINAL, INC.
/s/ X.X. Xxxxxx
------------------------------------------
Name: X.X. Xxxxxx
Title: President
INDEPENDENCE MATERIAL HANDLING COMPANY
/s/ X. X. Xxxxxx
------------------------------------------
Name: X.X. Xxxxxx
Title: Vice President & Treasurer
INTERIOR HOLDINGS CORP.
/s/ X. X. Xxxxxx
------------------------------------------
Name: X.X. Xxxxxx
Title: Vice President & Treasurer
XXXXX RIVER COAL TERMINAL COMPANY
/s/ X. X. Xxxxxxx
------------------------------------------
Name: X.X. Xxxxxxx
Title: President
JUNIPER COAL COMPANY
/s/ X.X. Xxxxxx
------------------------------------------
Name: X.X. Xxxxxx
Title: Vice President & Treasurer
KAYENTA MOBILE HOME PARK, INC.
/s/ X. X. Xxxxxx
------------------------------------------
Name: X.X. Xxxxxx
Title: Treasurer & Asst. Secretary
XXXXXXXX COAL COMPANY
/s/ X. X. Xxxxxx
------------------------------------------
Name: X.X. Xxxxxx
Title: Vice President & Treasurer
MIDCO SUPPLY AND EQUIPMENT CORPORATION
/s/ X. X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
MOUNTAIN VIEW COAL COMPANY
/s/ X. X. Xxxxxx
------------------------------------------
Name: X.X. Xxxxxx
Title: Vice President & Treasurer
NORTH PAGE COAL CORP.
/s/ X. X. Xxxxxx
------------------------------------------
Name: X.X. Xxxxxx
Title: Vice President & Treasurer
OHIO COUNTY COAL COMPANY
/s/ Xxxx Xxxx
------------------------------------------
Name: Xxxx Xxxx
Title: President
PATRIOT COAL COMPANY L.P.
By: Bluegrass Coal Company
/s/ Xxxx Xxxx
------------------------------------------
Name: Xxxx Xxxx
Title: President
PEABODY AMERICA, INC.
/s/ X. X. Xxxxxx
------------------------------------------
Name: X. X. Xxxxxx
Title: President
PEABODY COALSALES COMPANY
/s/ X.X. Xxxxxxx
------------------------------------------
Name: X.X. Xxxxxxx
Title: President
PEABODY COALTRADE, INC.
/s/ X.X. Xxxxxx
------------------------------------------
Name: X.X. Xxxxxx
Title: Vice President & Treasurer
PEABODY COAL COMPANY
/s/ X.X. Xxxxxx
------------------------------------------
Name: X.X. Xxxxxx
Title: Vice President
PEABODY DEVELOPMENT COMPANY
/s/ X.X. Xxxxxx
------------------------------------------
Name: X.X. Xxxxxx
Title: Vice President & Treasurer
PEABODY ENERGY SOLUTIONS, INC.
/s/ Xxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President & Treasurer
PEABODY HOLDING COMPANY, INC.
/s/ X.X. Xxxxxx
------------------------------------------
Name: X.X. Xxxxxx
Title: Vice President & Treasurer
PEABODY NATURAL RESOURCE COMPANY
By: Gold Fields Mining Corp.
/s/ X.X. Xxxxxx
------------------------------------------
Name: X.X. Xxxxxx
Title: Vice President & Treasurer
PEABODY TERMINALS, INC.
/s/ X.X. Xxxxxx
------------------------------------------
Name: X.X. Xxxxxx
Title: Vice President & Treasurer
PEABODY VENEZUELA COAL CORP.
/s/ X.X. Xxxxxx
------------------------------------------
Name: X.X. Xxxxxx
Title: Vice President & Treasurer
PEABODY WESTERN COAL COMPANY
/s/ X.X. Xxxxxx
------------------------------------------
Name: X.X. Xxxxxx
Title: President
PINE RIDGE COAL COMPANY
/s/ X.X. Xxxxxx
------------------------------------------
Name: X.X. Xxxxxx
Title: Vice President & Treasurer
POWDER RIVER COAL COMPANY
/s/ X.X. Xxxxxx
------------------------------------------
Name: X.X. Xxxxxx
Title: Vice President & Treasurer
RIO ESCONDIDO COAL CORP.
/s/ X.X. Xxxxxx
------------------------------------------
Name: X.X. Xxxxxx
Title: Vice President & Treasurer
SENECA COAL COMPANY
/s/ X.X. Xxxxxx
------------------------------------------
Name: X.X. Xxxxxx
Title: President
SENTRY MINING COMPANY
/s/ X.X. Xxxxxx
------------------------------------------
Name: X.X. Xxxxxx
Title: Vice President & Treasurer
SNOWBERRY LAND COMPANY
/s/ X.X. Xxxxxx
------------------------------------------
Name: X.X. Xxxxxx
Title: Vice President & Treasurer
STERLING SMOKELESS COAL COMPANY
/s/ X.X. Xxxxxx
------------------------------------------
Name: X.X. Xxxxxx
Title: Vice President & Treasurer
THOROUGHBRED, L.L.C.
By: Peabody Holding Company
/s/ X.X. Xxxxxx
------------------------------------------
Name: X.X. Xxxxxx
Title: Vice President & Treasurer
HIGHLAND MINING COMPANY
/s/ Xxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
PEABODY SOUTHWESTERN COAL COMPANY
/s/ X.X. Xxxxxx
------------------------------------------
Name: X.X. Xxxxxx
Title: Vice President & Treasurer
P&L COAL HOLDINGS CORPORATION
/s/ X.X. Xxxxxx
------------------------------------------
Name: X.X. Xxxxxx
Title: Vice President & Treasurer
STATE STREET BANK AND TRUST COMPANY
as Senior Subordinated Note Trustee
/s/ Xxxxxx X. Xxxx, Xx.
------------------------------------------
Name: Xxxxxx X. Xxxx, Xx.
Title: Vice President
