EXHIBIT 4.211
THIRD SUPPLEMENTAL INDENTURE
THIRD SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as
of February 24, 2004, 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
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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 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/ WALTER L. HAWKINS, JR. By: /s/ PHILIP G. KANE, JR.
--------------------------------- --------------------------------
Name: Walter L. Hawkins, Jr. Name: Philip G. Kane, Jr.
------------------------------- ------------------------------
Title: Vice President and Treasurer 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
INDIAN HILL COMPANY
INTERIOR HOLDINGS CORP.
JAMES RIVER COAL TERMINAL COMPANY
JARRELL'S BRANCH COAL COMPANY
JUNIPER COAL COMPANY
KANAWHA RIVER VENTURES I, LLC
KAYENTA MOBILE HOME PARK, INC.
LOGAN FORK COAL COMPANY
MARTINKA COAL COMPANY
MIDCO SUPPLY AND EQUIPMENT
CORPORATION
MIDWEST COAL ACQUISITION CORP.
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.
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PEABODY ENERGY SOLUTIONS, INC.
PEABODY HOLDING COMPANY, INC.
PEABODY NATURAL GAS, LLC
PEABODY NATURAL RESOURCES COMPANY
PEABODY POWERTREE INVESTMENTS, LLC
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
PEC EQUIPMENT COMPANY, LLC
PINE RIDGE COAL COMPANY
POINT PLEASANT DOCK COMPANY, LLC
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.
WILLIAMSVILLE COAL COMPANY, LLC
YANKEETOWN DOCK CORPORATION
By: /s/ WALTER L. HAWKINS, JR.
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Name: Walter L. Hawkins, Jr.
Title: Vice President
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NEW GUARANTEEING SUBSIDIARIES:
PDC PARTNERSHIP HOLDINGS, INC.
By: /s/ WALTER L. HAWKINS, JR.
--------------------------------
Name: Walter L. Hawkins, Jr.
Title: Vice President & Treasurer
WATERSIDE-MARISSA DEVELOPMENT, L.L.C.
By: /s/ WALTER L. HAWKINS, JR.
--------------------------------
Name: Walter L. Hawkins, Jr.
Title: Vice President & Treasurer
BTU VENEZUELA, LLC
By: /s/ WALTER L. HAWKINS, JR.
--------------------------------
Name: Walter L. Hawkins, Jr.
Title: Vice President & Treasurer
BLACK STALLION COAL COMPANY, LLC
By: /s/ WALTER L. HAWKINS, JR.
--------------------------------
Name: Walter L. Hawkins, Jr.
Title: Vice President & Treasurer
BLACK HILLS MINING CO., LLC
By: /s/ WALTER L. HAWKINS, JR.
--------------------------------
Name: Walter L. Hawkins, Jr.
Title: Vice President & Treasurer
BTU WORLDWIDE, INC.
By: /s/ WALTER L. HAWKINS, JR.
--------------------------------
Name: Walter L. Hawkins, Jr.
Title: Vice President & Treasurer
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SCHEDULE 1
NEW GUARANTEEING SUBSIDIARIES
PDC Partnership Holdings, Inc., a Delaware corporation
Waterside-Marissa Development, L.L.C., a Delaware limited liability company
Black Stallion Coal Company, LLC, a Delaware limited liability company
Black Hills Mining Co., LLC, an Illinois limited liability company
BTU Venezuela, LLC, a Delaware limited liability company
BTU Worldwide, Inc., a Delaware corporation
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