EXHIBIT 4.198
SECOND SUPPLEMENTAL INDENTURE
SECOND SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of
September 30, 2003, by and among the entities listed on Schedule 1 attached
hereto (the "Guaranteeing Subsidiaries"), each being a subsidiary of Peabody
Energy Corporation (or its permitted successor), a Delaware corporation (the
"Company"), the Company, the other Subsidiary Guarantors (as defined in the
Indenture referred to herein) and US Bank National Association, as Trustee under
the Indenture referred to below (the "Trustee").
WITNESSETH
WHEREAS, the Company has heretofore executed and delivered to the Trustee
an Indenture (the "Indenture"), dated as of March 21, 2003 providing for the
issuance of an unlimited amount of 6-7/8% Notes due 2013 (the "Notes"), as
supplemented by a First Supplemental Indenture, dated as of May 7, 2003;
WHEREAS, the Indenture provides that under certain circumstances the
Guaranteeing Subsidiaries shall execute and deliver to the Trustee a
supplemental indenture pursuant to which the Guaranteeing Subsidiaries shall
unconditionally guarantee all of the Company's Obligations under the Notes on
the terms and conditions set forth herein (the "Subsidiary Guarantee"); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental 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 Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders of the Notes as follows:
1. Capitalized Terms. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
2. Agreement to Guarantee. The Guaranteeing Subsidiaries hereby agree as
follows:
(a) Along with all Subsidiary Guarantors named in the Indenture, to
jointly and severally Guarantee to each Holder of a Note
authenticated and delivered by the Trustee and to the Trustee and
its successors and assigns, irrespective of the validity and
enforceability of the Indenture, the Notes or the obligations of the
Company hereunder or thereunder, that:
(i) the principal of and interest on the 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 Notes, if any, if lawful, and all other
obligations of the Company to the Holders or the 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
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 Subsidiary
Guarantors shall be jointly and severally obligated to pay the same
immediately. Each Subsidiary Giarantor agrees that this is a
guarantee of payment and not a guarantee of collection.
(b) The obligations hereunder shall be joint and several and
unconditional, irrespective of the validity or enforceability of the
Notes or the obligations of the Company under the Indenture, the
absence of any action to enforce the same, any waiver or consent by
any Holder of the 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
Subsidiary 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 Subsidiary Guarantee shall not be discharged except by complete
performance of the obligations contained in the Notes and the
Indenture.
(e) If any Holder or the Trustee is required by any court or otherwise
to return to the Company, the Subsidiary Guarantors, or any
custodian, Trustee, liquidator or other similar official acting in
relation to either the Company or the Subsidiary Guarantors, any
amount paid by either to the Trustee or such Holder, this Subsidiary
Guarantee, to the extent theretofore discharged, shall be reinstated
in full force and effect.
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(f) The Guaranteeing Subsidiaries shall not 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 Subsidiary Guarantors, on the one hand, and the
Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in
Article 6 of the Indenture for the purposes of this 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
Indenture, such obligations (whether or not due and payable) shall
forthwith become due and payable by the Subsidiary Guarantors for
the purpose of this Subsidiary Guarantee.
(h) The Subsidiary Guarantors shall have the right to seek contribution
from any non-paying Subsidiary Guarantor so long as the exercise of
such right does not impair the rights of the Holders under the
Subsidiary Guarantee.
(i) Pursuant to Section 10.04 of the Indenture, 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 Subsidiary Guarantor in respect of the obligations of
such other Subsidiary Guarantor under Article 10 of the Indenture
shall result in the obligations of such Subsidiary Guarantor under
Subsidiary Guarantee not constituting a fraudulent transfer or
conveyance.
3. Execution and Delivery. Each of the Guaranteeing Subsidiaries agrees
that the Subsidiary Guarantees shall remain in full force and effect
notwithstanding any failure to endorse on each Note a notation of such
Subsidiary Guarantee.
4. Guaranteeing Subsidiary May Consolidate, Etc. on Certain Terms.
(a) The Guaranteeing Subsidiaries may not 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
Subsidiary Guarantor unless:
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(i) subject to Section 10.04 of the Indenture, the Person
formed by or surviving any such consolidation or merger
(if other than a Subsidiary Guarantor or the Company)
unconditionally assumes all the obligations of such
Subsidiary Guarantor, pursuant to a supplemental
Indenture in form and substance reasonably satisfactory
to the Trustee, under the Notes, the Indenture and the
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 Indenture, executed and delivered to the Trustee
and satisfactory in form to the Trustee, of the Subsidiary
Guarantee endorsed upon the Notes and the due and punctual
performance of all of the covenants and conditions of the
Indenture to be performed by the Subsidiary Guarantor, such
successor corporation shall succeed to and be substituted for
the Subsidiary Guarantor with the same effect as if it had
been named herein as a Subsidiary Guarantor. Such successor
corporation thereupon may cause to be signed any or all of the
Subsidiary Guarantees to be endorsed upon all of the Notes
issuable hereunder which theretofore shall not have been
signed by the Company and delivered to the Trustee. All the
Subsidiary Guarantees so issued shall in all respects have the
same legal rank and benefit under the Indenture as the
Subsidiary Guarantees theretofore and thereafter issued in
accordance with the terms of the Indenture as though all of
such Subsidiary Guarantees had been issued at the date of the
execution hereof.
(c) Except as set forth in Articles 4 and 5 of the Indenture, and
notwithstanding clauses (a) and (b) above, nothing contained
in the Indenture or in any of the Notes shall prevent any
consolidation or merger of a Subsidiary Guarantor with or into
the Company or another Subsidiary Guarantor, or shall prevent
any sale or conveyance of the property of a Subsidiary
Guarantor as an entirety or substantially as an entirety to
the Company or another Subsidiary Guarantor.
5. Releases.
(a) In the event of a sale or other disposition of all of the
assets of any Subsidiary Guarantor, by way of merger,
consolidation or otherwise, or a sale or other disposition of
all to the capital stock of any Subsidiary Guarantor, then
such Subsidiary Guarantor (in the event of a sale or other
disposition, by way of merger, consolidation or otherwise, of
all of the capital stock of
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such Subsidiary 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 Subsidiary
Guarantor) will be released and relieved of any obligations
under its Subsidiary Guarantee; provided that the Net Proceeds
of such sale or other disposition are applied in accordance
with the applicable provisions of the Indenture, including
without limitation Section 4.10 of the Indenture. Upon
delivery by the Company to the Trustee of an Officer's
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 Indenture, including
without limitation Section 4.10 of the Indenture, the Trustee
shall execute any documents reasonably required in order to
evidence the release of any Subsidiary Guarantor from its
obligations under its Subsidiary Guarantee.
(b) Any Subsidiary Guarantor not released from its obligations
under its Subsidiary Guarantee shall remain liable for the
full amount of principal of and interest on the Notes and for
the other obligations of any Subsidiary Guarantor under the
Indenture as provided in Article 10 of the Indenture.
6. No Recourse Against Others. No past, present or future director,
officer, employee, incorporator, stockholder or agent of the Guaranteeing
Subsidiaries, as such, shall have any liability for any obligations of the
Company or any of the Guaranteeing Subsidiaries under the Notes, any Subsidiary
Guarantees, the Indenture or this Supplemental Indenture or for any claim based
on, in respect of, or by reason of, such obligations or their creation. Each
Holder of the Notes by accepting a Note waives and releases all such liability.
The waiver and release are part of the consideration for issuance of the 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 LAW OF THE STATE OF NEW YORK SHALL GOVERN
AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE.
8. Counterparts. The parties may sign any number of copies of this
Supplemental 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.
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10. The Trustee. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Supplemental
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
Indenture to be executed by their respective officers thereunto duly authorized,
as of the date first written above.
PEABODY ENERGY CORPORATION US BANK NATIONAL ASSOCIATION
("COMPANY") ("TRUSTEE")
By: /s/ STEVEN F. SCHAAB By: /s/ PHILIP G. KANE, JR.
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Name: Steven F. Schaab Name: Philip G. Kane, Jr.
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Title: Vice President Title: Vice President
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EXISTING SUBSIDIARY GUARANTORS:
AFFINITY MINING COMPANY
ARCLAR COMPANY, LLC
ARID OPERATIONS INC.
BEAVER DAM COAL COMPANY
BIG RIDGE, INC.
BIG SKY COAL COMPANY
BLACK BEAUTY COAL COMPANY
BLACK BEAUTY EQUIPMENT COMPANY
BLACK BEAUTY HOLDING COMPANY, LLC
BLACK BEAUTY MINING, INC.
BLACK BEAUTY RESOURCES, INC.
BLACK BEAUTY UNDERGROUND, INC.
BLACK WALNUT COAL COMPANY
BLUEGRASS COAL COMPANY
CABALLO COAL COMPANY
CHARLES COAL COMPANY
CLEATON COAL COMPANY
COAL PROPERTIES CORP.
COLONY BAY COAL COMPANY
COOK MOUNTAIN COAL COMPANY
COTTONWOOD LAND COMPANY
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CYPRUS CREEK LAND COMPANY
CYPRUS CREEK LAND RESOURCES, LLC
EACC CAMPS, INC.
EAGLE COAL COMPANY
EASTERN ASSOCIATED COAL CORP.
EASTERN ROYALTY CORP.
EMPIRE MARINE, LLC
FALCON COAL COMPANY
GALLO FINANCE COMPANY
GIBCO MOTOR EXPRESS, LLC
GOLD FIELDS CHILE, S.A.
GOLD FIELDS MINING CORPORATION
GOLD FIELDS OPERATING CO. - ORTIZ
GRAND EAGLE MINING, INC.
HAYDEN GULCH TERMINAL, INC.
HIGHLAND MINING COMPANY
HIGHWALL MINING SERVICES COMPANY
HILLSIDE MINING COMPANY
INDEPENDENCE MATERIAL HANDLING COMPANY
INTERIOR HOLDINGS CORP.
JAMES RIVER COAL TERMINAL COMPANY
JARRELL'S BRANCH COAL COMPANY
JUNIPER COAL COMPANY
KAYENTA MOBILE HOME PARK, INC.
LOGAN FORK COAL COMPANY
MARTINKA COAL COMPANY
MIDCO SUPPLY AND EQUIPMENT CORPORATION
MOUNTAIN VIEW COAL COMPANY
MUSTANG ENERGY COMPANY, L.L.C.
NORTH PAGE COAL CORP.
OHIO COUNTY COAL COMPANY
PATRIOT COAL COMPANY, L.P.
PEABODY AMERICA, INC.
PEABODY ARCHVEYOR, L.L.C.
PEABODY COAL COMPANY
PEABODY COALSALES COMPANY
PEABODY COALTRADE, INC.
PEABODY DEVELOPMENT COMPANY
PEABODY DEVELOPMENT LAND HOLDINGS, LLC
PEABODY ENERGY GENERATION HOLDING
PEABODY ENERGY INVESTMENTS, INC.
PEABODY ENERGY SOLUTIONS, INC.
PEABODY HOLDING COMPANY, INC.
PEABODY NATURAL GAS, LLC
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PEABODY NATURAL RESOURCES COMPANY
PEABODY RECREATIONAL LANDS, L.L.C.
PEABODY SOUTHWESTERN COAL COMPANY
PEABODY TERMINALS, INC.
PEABODY VENEZUELA COAL CORP.
PEABODY-WATERSIDE DEVELOPMENT, L.L.C.
PEABODY WESTERN COAL COMPANY
PINE RIDGE COAL COMPANY
POND CREEK LAND RESOURCES, LLC
POND RIVER LAND COMPANY
PORCUPINE PRODUCTION, LLC
PORCUPINE TRANSPORTATION, LLC
POWDER RIVER COAL COMPANY
PRAIRIE STATE GENERATING COMPANY, L.L.C.
RIO ESCONDIDO COAL CORP.
RIVERS EDGE MINING, INC.
RIVERVIEW TERMINAL COMPANY
SENECA COAL COMPANY
SENTRY MINING COMPANY
SNOWBERRY LAND COMPANY
STAR LAKE ENERGY COMPANY, L.L.C.
STERLING SMOKELESS COAL COMPANY
SUGAR CAMP PROPERTIES
THOROUGHBRED, L.L.C.
THOROUGHBRED GENERATING COMPANY, LLC
THOROUGHBRED MINING COMPANY, L.L.C.
YANKEETOWN DOCK CORPORATION
By: /s/ STEVEN F. SCHAAB
-----------------------------------------
Name: Steven F. Schaab
Title: Vice President
NEW GUARANTEEING SUBSIDIARIES:
INDIAN HILL COMPANY
By: /s/ STEVEN F. SCHAAB
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Name: Steven F. Schaab
Title: Vice President & Treasurer
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KANAWHA RIVER VENTURES I, LLC
By: /s/ STEVEN F. SCHAAB
--------------------------------
Name: Steven F. Schaab
Title: Vice President & Treasurer
MIDWEST COAL ACQUISITION CORP.
By: /s/ STEVEN F. SCHAAB
--------------------------------
Name: Steven F. Schaab
Title: Vice President & Treasurer
PEABODY POWERTREE INVESTMENTS, LLC
By: /s/ STEVEN F. SCHAAB
--------------------------------
Name: Steven F. Schaab
Title: Vice President & Treasurer
PEC EQUIPMENT COMPANY, LLC
By: /s/ STEVEN F. SCHAAB
--------------------------------
Name: Steven F. Schaab
Title: Vice President & Treasurer
POINT PLEASANT DOCK COMPANY, LLC
By: /s/ STEVEN F. SCHAAB
--------------------------------
Name: Steven F. Schaab
Title: Vice President & Treasurer
WILLIAMSVILLE COAL COMPANY, LLC
By: /s/ STEVEN F. SCHAAB
--------------------------------
Name: Steven F. Schaab
Title: Vice President & Treasurer
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SCHEDULE 1
NEW GUARANTEEING SUBSIDIARIES
Indian Hill Company, a Delaware corporation
Kanawha River Ventures I, LLC, a West Virginia limited liability company
Midwest Coal Acquisition Corp., a Delaware corporation
Peabody PowerTree Investments, LLC, a Delaware limited liability company
PEC Equipment Company, LLC, a Delaware limited liability company
Point Pleasant Dock Company, LLC, a Delaware limited liability company
Williamsville Coal Company, LLC, a Delaware limited liability company
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