EXHIBIT 10.46
AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF MAY 8, 2003
This AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(this "Agreement") is among PEABODY ENERGY CORPORATION, a Delaware corporation
(the "Borrower"), the Lenders (as defined below) and FLEET NATIONAL BANK, as
administrative agent (in such capacity, the "Administrative Agent").
PRELIMINARY STATEMENTS:
1. The Borrower, the Lenders and the Administrative Agent have entered into
that certain Second Amended and Restated Credit Agreement, dated as of March 21,
2003, by and among the Borrower, the several lenders from time to time parties
thereto (the "Lenders"), Wachovia Bank, National Association and Lehman
Commercial Paper Inc., as syndication agents, Fleet Securities, Inc., Wachovia
Securities, Inc. and Lehman Brothers Inc., as arrangers, Morgan Stanley Senior
Funding, Inc. and U.S. Bank National Association, as documentation agents, and
the Administrative Agent (the "Credit Agreement"; capitalized terms used and not
otherwise defined herein have the meanings assigned to such terms in the Credit
Agreement).
2. The Borrower has requested that the Lenders amend the definition of
"Change in Control" set forth in the Credit Agreement.
3. Subject to the terms and conditions set forth below, and in
consideration of certain agreements of the Borrower and other Credit Parties set
forth herein, the Required Lenders are willing to agree to the amendment
described below.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. Amendment to Credit Agreement. The definition of "Change in
Control" in Section 1.1 of the Credit Agreement is hereby amended by deleting
the definition in its entirety and replacing it with the following:
"Change in Control": (i) any "person" or "group" (as such terms are
used in Sections 13(d) and 14(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act")), excluding LBMBP II and its
Affiliates shall at any time (x) become, or obtain rights (whether by
means or warrants, options or otherwise) to become, the "beneficial
owner" (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange
Act), directly or indirectly, of more than 20% of the outstanding
common stock of the Borrower (provided that such percentage is also
greater than the percentage of the outstanding common stock of the
Borrower owned by LBMBP II and its Affiliates at such time) or (y) have
the power to vote or direct the voting of securities having a majority
of the ordinary voting power for the election of directors or managers
of the Borrower (determined on a fully diluted basis) or (ii) a "Change
of Control" (as defined in the Senior Notes Indenture as in effect on
the Effective Date).
SECTION 2. Conditions to Effectiveness. The effectiveness of this
Agreement is conditioned upon satisfaction of the following conditions
precedent:
a. the Administrative Agent shall have received signed written
authorization from the Required Lenders to execute this Agreement and shall have
received counterparts of this Agreement signed by the Borrower and counterparts
of the Consent of Credit Parties attached hereto (the "Consent") signed by the
Credit Parties;
b. each of the representations and warranties in Section 3
below shall be true and correct in all material respects;
c. the Administrative Agent shall have received payment in
immediately available funds of all expenses incurred by the Administrative Agent
and the Syndication Agents (including, without limitation, legal fees) for which
invoices have been presented; and
d. the Administrative Agent shall have received such other
documents, instruments and opinions as it shall have reasonably requested.
SECTION 3. Representations and Warranties. The Borrower represents and
warrants to the Administrative Agent and the Lenders as follows:
a. Authority. Each of the Credit Parties has the requisite
corporate power and authority to execute and deliver this Agreement and the
Consent, as applicable, and to perform its obligations hereunder and under the
Credit Documents (as modified hereby). The execution, delivery and performance
by the Borrower and each other Credit Party of this Agreement, the Consent (as
applicable), the Credit Documents (as modified hereby) and the transactions
contemplated hereby and thereby have been duly approved by all necessary
corporate action of such Person and no other corporate proceedings on the part
of such Person are necessary to consummate such transactions.
b. Enforceability. This Agreement has been duly executed and
delivered by the Borrower. The Consent has been duly executed and delivered by
each Credit Party. This Agreement, the Consent and each Credit Document (as
modified hereby) is the legal, valid and binding obligation of each Credit Party
hereto and thereto, enforceable against such Credit Party in accordance with its
terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing, and is in full force and effect
c. Representations and Warranties. The representations and
warranties contained in each Credit Document (other than any such
representations and warranties that, by their terms, are specifically made as of
a date other than the date hereof) are true and correct in all material respects
on and as of the date hereof as though made on and as of the date hereof.
d. No Default. Both immediately before and after giving effect
to the amendment set forth in Section 1 hereof, no event has occurred and is
continuing that constitutes a Default or Event of Default.
SECTION 4. Reference to and Effect on Credit Agreement.
a. Upon and after the effectiveness of this Agreement, each
reference in the Credit Agreement to "this Agreement", "hereunder", "hereof" or
words of like import referring to the Credit Agreement, and each reference in
the other Credit Documents to "the Credit Agreement", "thereunder", "thereof" or
words of like import referring to the Credit Agreement, shall mean and be a
reference to the Credit Agreement as modified hereby.
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b. Except as specifically modified above, the Credit Agreement
and the other Credit Documents are and shall continue to be in full force and
effect and are hereby in all respects ratified and confirmed. Without limiting
the generality of the foregoing, the Security Documents and all of the
Collateral described therein do and shall continue to secure the payment of all
Obligations under and as defined therein, in each case as modified hereby.
c. The execution, delivery and effectiveness of this Agreement
shall not, except as expressly provided herein, operate as a waiver of any
right, power or remedy of the Administrative Agent or any Lender under any of
the Credit Documents, nor, except as expressly provided herein, constitute a
waiver or amendment of any provision of any of the Credit Documents.
SECTION 5. Counterparts. This Agreement may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of which when so executed and delivered shall be deemed to be an original and
all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this Agreement by
facsimile shall be effective as delivery of a manually executed counterpart of
this Agreement or such Consent.
SECTION 6. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 7. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first written above.
PEABODY ENERGY CORPORATION,
a Delaware corporation
By: /s/ Steven F. Schaab
-------------------------------------
Name: Steven F. Schaab
Title: V.P. and Treasurer
FLEET NATIONAL BANK,
as Administrative Agent, on behalf of the
Required Lenders
By: /s/ Christopher C. Holmgren
-------------------------------------
Name: Christopher C. Holmgren
Title: Managing Director
EXECUTION COPY
CONSENT OF CREDIT PARTIES
DATED AS OF MAY 8, 2003
The undersigned, as Guarantors and as Grantors under the
"Guarantee and Collateral Agreement", as Grantors under the "Trademark Security
Agreement" and each "Patent Security Agreement" and as Mortgagors under each
"Mortgage" (as such terms are defined in and under the Credit Agreement referred
to in the foregoing Amendment No. 1), as applicable, each hereby consents and
agrees to the foregoing Amendment No. 1 and hereby confirms and agrees that (i)
each of the Guarantee and Collateral Agreement, Trademark Security Agreement,
each Patent Security Agreement and each Mortgage is, and shall continue to be,
in full force and effect and is hereby ratified and confirmed in all respects
except that, upon the effectiveness of, and on and after the date of, said
Amendment No. 1, each reference in the Guarantee and Collateral Agreement, the
Trademark Security Agreement, each Patent Security Agreement and each Mortgage
to the "Credit Agreement", "thereunder", "thereof" and words of like import
referring to the Credit Agreement, shall mean and be a reference to the Credit
Agreement as modified by said Amendment No. 1, (ii) the Guarantee and Collateral
Agreement and all of the Collateral described therein does, and shall continue
to, secure the payment of all of the Obligations as defined in the Guarantee and
Collateral Agreement, (iii) the Trademark Security Agreement and all of the
Collateral described therein does, and shall continue to, secure the payment of
all of the Obligations as defined in the Guarantee and Collateral Agreement,
(iv) each Patent Security Agreement and all of the Collateral described therein
does, and shall continue to, secure the payment of all of the Obligations as
defined in the Guarantee and Collateral Agreement and (v) each Mortgage and all
of the Collateral described therein does, and shall continue to, secure the
payment of all of the Obligations as defined in the Guarantee and Collateral
Agreement.
[Signature page follows]
IN WITNESS WHEREOF, the parties hereto have caused this Consent of
Credit Parties to be executed by their respective officers thereunto duly
authorized, as of the date first written above.
PEABODY ENERGY CORPORATION
AFFINITY MINING COMPANY
ARID OPERATIONS INC.
BEAVER DAM COAL COMPANY
BIG RIDGE, INC.
BIG SKY COAL COMPANY
BLACK WALNUT COAL COMPANY
BLUEGRASS COAL COMPANY
CABALLO COAL COMPANY
CHARLES COAL COMPANY
CLEATON COAL COMPANY
COAL PROPERTIES CORP.
COOK MOUNTAIN COAL COMPANY
COTTONWOOD LAND COMPANY
CYPRUS CREEK LAND COMPANY
EACC CAMPS, INC.
EASTERN ASSOCIATED COAL CORP.
EASTERN ROYALTY CORP.
GALLO FINANCE COMPANY
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
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
NORTH PAGE COAL CORP.
OHIO COUNTY COAL COMPANY
PEABODY AMERICA, INC.
PEABODY COAL COMPANY
PEABODY COALSALES COMPANY
PEABODY COALTRADE, INC.
PEABODY DEVELOPMENT COMPANY
PEABODY ENERGY GENERATION HOLDING
PEABODY ENERGY INVESTMENTS, INC.
PEABODY ENERGY SOLUTIONS, INC.
PEABODY HOLDING COMPANY, INC.
PEABODY SOUTHWESTERN COAL COMPANY
PEABODY TERMINALS, INC.
PEABODY VENEZUELA COAL CORP.
PEABODY WESTERN COAL COMPANY
PINE RIDGE COAL COMPANY
POND RIVER LAND COMPANY
POWDER RIVER COAL COMPANY
RIO ESCONDIDO COAL CORP.
RIVERS EDGE MINING, INC.
RIVERVIEW TERMINAL COMPANY
SENECA COAL COMPANY
SENTRY MINING COMPANY
SNOWBERRY LAND COMPANY
STERLING SMOKELESS COAL COMPANY
YANKEETOWN DOCK CORPORATION
By: /s/ Steven F. Schaab
-------------------------------------
Name: Steven F. Schaab
Title: V.P.
BLACK BEAUTY COAL COMPANY
By: Thoroughbred, L.L.C.,
a Delaware limited liability
company, its Partner
By: /s/ Steven F. Schaab
--------------------------------
Name: Steven F. Schaab
Title: V.P.
COLONY BAY COAL COMPANY
By: Charles Coal Company,
a Delaware corporation, its
General Partner
By: /s/ Steven F. Schaab
---------------------------------
Name: Steven F. Schaab
Title: V.P.
CYPRUS CREEK LAND RESOURCES, LLC
By: Peabody Development Company,
a Delaware corporation, its Sole
Member
By: /s/ Steven F. Schaab
---------------------------------
Name: Steven F. Schaab
Title: V.P. and Treasurer
MUSTANG ENERGY COMPANY, L.L.C.
By: Peabody Energy Corporation,
a Delaware corporation, its Sole
Member
By: /s/ Steven F. Schaab
---------------------------------
Name: Steven F. Schaab
Title: V.P. and Treasurer
PATRIOT COAL COMPANY, L.P.
By: Bluegrass Coal Company,
a Delaware corporation, its
Partner
By: /s/ Steven F. Schaab
---------------------------------
Name: Steven F. Schaab
Title: V.P. and Treasurer
By: Sentry Mining Company,
a Delaware corporation, its
Partner
By: /s/ Steven F. Schaab
---------------------------------
Name: Steven F. Schaab
Title: V.P. and Treasurer
PEABODY ARCHVEYOR, L.L.C.
By: Gold Fields Mining Corporation,
a Delaware corporation, its Sole
Member
By: /s/ Steven F. Schaab
---------------------------------
Name: Steven F. Schaab
Title: V.P. and Treasurer
PEABODY DEVELOPMENT LAND HOLDINGS, LLC
By: Peabody Development Company,
a Delaware corporation, its
Member
By: /s/ Steven F. Schaab
---------------------------------
Name: Steven F. Schaab
Title: V.P. and Treasurer
By: Peabody Holding Company, Inc.,
a New York corporation, its
Member
By: /s/ Steven F. Schaab
---------------------------------
Name: Steven F. Schaab
Title: V.P. and Treasurer
PEABODY NATURAL GAS, LLC
By: Peabody Holding Company, Inc.,
a New York corporation, its Sole
Member
By: /s/ Steven F. Schaab
---------------------------------
Name: Steven F. Schaab
Title: V.P. and Treasurer
PEABODY NATURAL RESOURCES COMPANY
By: Gold Fields Mining Corporation,
a Delaware corporation, its
Partner
By: /s/ Steven F. Schaab
---------------------------------
Name: Steven F. Schaab
Title: V.P. and Treasurer
By: Peabody America, Inc.,
a Delaware corporation, its
Partner
By: /s/ Steven F. Schaab
---------------------------------
Name: Steven F. Schaab
Title: V.P. and Treasurer
PEABODY RECREATIONAL LANDS, L.L.C.
By: Peabody Development Company,
a Delaware corporation, its Sole
Member
By: /s/ Steven F. Schaab
---------------------------------
Name: Steven F. Schaab
Title: V.P. and Treasurer
PEABODY-WATERSIDE DEVELOPMENT, L.L.C.
By: Peabody Development Company,
a Delaware corporation, its Sole
Member
By: /s/ Steven F. Schaab
---------------------------------
Name: Steven F. Schaab
Title: V.P. and Treasurer
POND CREEK LAND RESOURCES, LLC
By: Peabody Coal Company,
a Delaware corporation, its Sole
Member
By: /s/ Steven F. Schaab
---------------------------------
Name: Steven F. Schaab
Title: V.P. and Treasurer
PORCUPINE PRODUCTION, LLC
By: Peabody Development Company,
a Delaware corporation, its Sole
Member
By: /s/ Steven F. Schaab
---------------------------------
Name: Steven F. Schaab
Title: V.P. and Treasurer
PORCUPINE TRANSPORTATION, LLC
By: Peabody Development Company,
a Delaware corporation, its Sole
Member
By: /s/ Steven F. Schaab
---------------------------------
Name: Steven F. Schaab
Title: V.P. and Treasurer
PRAIRIE STATE GENERATING COMPANY, LLC
By: Peabody Energy Corporation,
a Delaware corporation, its Sole
Member
By: /s/ Steven F. Schaab
---------------------------------
Name: Steven F. Schaab
Title: V.P. and Treasurer
STAR LAKE ENERGY COMPANY, L.L.C.
By: Peabody Energy Corporation,
a Delaware corporation, its Sole
Member
By: /s/ Steven F. Schaab
---------------------------------
Name: Steven F. Schaab
Title: V.P. and Treasurer
THOROUGHBRED, L.L.C.
By: Peabody Holding Company, Inc.,
a New York corporation, its
Member
By: /s/ Steven F. Schaab
---------------------------------
Name: Steven F. Schaab
Title: V.P. and Treasurer
By: Peabody Development Company,
a Delaware corporation, its
Member
By: /s/ Steven F. Schaab
---------------------------------
Name: Steven F. Schaab
Title: V.P. and Treasurer
THOROUGHBRED GENERATING COMPANY, LLC
By: Peabody Energy Corporation,
a Delaware corporation, its Sole
Member
By: /s/ Steven F. Schaab
---------------------------------
Name: Steven F. Schaab
Title: V.P. and Treasurer
THOROUGHBRED MINING COMPANY, L.L.C.
By: Peabody Energy Corporation,
a Delaware corporation, its Sole
Member
By: /s/ Steven F. Schaab
---------------------------------
Name: Steven F. Schaab
Title: V.P. and Treasurer