EXHIBIT 10.66
AMENDMENT NO. 2 TO SECOND AMENDED AND RESTATED CREDIT
AGREEMENT
DATED AS OF MARCH 8, 2004
This AMENDMENT NO. 2 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(this "Amendment") is among PEABODY ENERGY CORPORATION, a Delaware corporation
(the "Borrower"), the Lenders (as defined below), FLEET NATIONAL BANK, as
administrative agent (in such capacity, the "Administrative Agent"), and
WACHOVIA BANK, NATIONAL ASSOCIATION and LEHMAN COMMERCIAL PAPER INC, as
syndication agents.
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 Capital Markets, LLC (formerly known as 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
(as amended through the date hereof, 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 (i) has requested that the Lenders amend the
Credit Agreement to, among other things, reduce the Applicable Margin on the
Term Loans and provide for additional Revolving Credit Commitments, (ii) has
advised the Lenders that it desires to consummate the Specified Acquisitions (as
defined below) and in connection therewith to potentially finance a portion of
the purchase price thereof with additional Term Loans under the Credit Agreement
or other Indebtedness and (iii) has requested that the Lenders amend the Credit
Agreement to permit the Specified Acquisitions, the possible financing thereof
with additional Term Loans or other Indebtedness, and certain other amendments.
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 and in the accompanying Consent of Credit Parties, the
Administrative Agent, the Syndication Agent and the requisite 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 Amendments to Credit Agreement. Upon the satisfaction of
the applicable conditions precedent set forth in Section 4, the Credit Agreement
is hereby amended as follows:
(a) The following new definitions are hereby added to subsection 1.1 of
the Credit Agreement:
"Revolving Increase Effective Date": the date on which the
amendments contained in Sections 1(a), (c), (d), (f) and (p) of the
Second Amendment became effective in accordance with its terms,
which for all purposes under this Agreement will be deemed to be
March 8, 2004.
"Second Amendment": Amendment No. 2 to this Agreement, dated
as of March 8, 2004.
"Specified Acquisitions": the collective reference to three
transactions in which the Borrower will acquire certain coal mining
assets of RAG Coal International AG, the total consideration for
which is approximately $500,000,000, on terms and conditions
reasonably satisfactory to the Administrative Agent, including,
without limitation, compliance with subsection 6.10.
(b) The definition of "Consolidated EBITDA" contained in subsection 1.1 of
the Credit Agreement is hereby amended to insert the following proviso
immediately before the period at the end thereof:
"provided, further, that for purposes of calculating Consolidated
EBITDA of the Borrower, for any fiscal quarter, (i) the Consolidated
EBITDA of (A) the businesses acquired in any Specified Acquisition
by the Borrower or any Restricted Subsidiary and (B) any other
business acquired by the Borrower or its Restricted Subsidiaries if
the EBITDA for the most recent twelve-month period for which
quarterly financial statements are available of such business is
equal to or greater than 5% of the Borrower's EBITDA for such
period, in each case, during such fiscal quarter shall be included
on a pro forma basis for such fiscal quarter (assuming the
consummation of such acquisition and the incurrence or assumption of
any Indebtedness in connection therewith occurred on the first day
of such fiscal quarter) if the consolidated balance sheet of the
businesses acquired in such Specified Acquisition or such other
acquired business, as the case may be, as at the end of the fiscal
quarter preceding the date of such acquisition and the related
consolidated statements of income and of cash flows for the fiscal
quarter in respect of which Consolidated EBITDA is to be calculated
(x) have been previously provided to the Administrative Agent and
(y) either (1) have been reported on without a qualification arising
out of the scope of the audit by
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independent certified public accountants of nationally recognized
standing or (2) have been found reasonably acceptable by the
Administrative Agent and (ii) the Consolidated EBITDA of any
business disposed of by the Borrower or its Restricted Subsidiaries
during such fiscal quarter shall be excluded for such fiscal quarter
if the EBITDA for the most recent twelve-month period for which
quarterly financial statements are available of such business
constituted 5% or more of the Borrower's EBITDA for such period
(assuming the consummation or such disposition and the repayment of
any indebtedness in connection therewith occurred on the first day
of such fiscal quarter)."
(c) The definition of "Lender Addendum" contained in subsection 1.1 of the
Credit Agreement is hereby amended and restated in its entirety as follows:
`"Lender Addendum": with respect to any Lender, a Lender Addendum
substantially in the form attached hereto as Exhibit H."
(d) The definition of "Revolving Credit Commitment" contained in
subsection 1.1 of the Credit Agreement is hereby amended to replace the clause
"which shall be $600,000,000" with the following clause:
"which shall be equal to $600,000,000, as such amount may be
increased in accordance with subsection 2.1(a)(ii)".
(e) The definition of "Tangible Assets" contained in subsection 1.1 of the
Credit Agreement is hereby amended to add the following clause at the end of
clause (a) thereof and immediately prior to the word "minus": "plus, to the
extent not otherwise included, any coal reserve held in fee or leasehold".
(f) Subsection 2.1(a)(ii) of the Credit Agreement is hereby amended to
insert the following at the end thereof:
"Provided that no Default or Event of Default has occurred and is
continuing and the Revolving Credit Commitments have not been
terminated, the Borrower shall be entitled, at any time on or after
the Revolving Increase Effective Date but prior to April 15, 2004,
with the written consent of the Administrative Agent but without any
consent from the Lenders, except the Lenders providing all or part
of such increased amount, to request an increase in the Revolving
Credit Commitments of up to $300,000,000 in the aggregate; and
conforming changes may be made to this Agreement by the
Administrative Agent to evidence such increase and adjustments may
be made among Revolving Credit Lenders to cause all Revolving Credit
Lenders to have extended their pro rata share of the Revolving
Extensions of Credit after giving effect to any increase in the
Revolving Credit Commitments effected hereby."
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(g) Subsection 2.17 of the Credit Agreement is hereby amended to insert
the following clause immediately after the words "all Lenders" in the last
sentence thereof: "or all Lenders with respect to a particular Type of Loan or
all Lenders "directly affected" by such consent, waiver or amendment, in each
case".
(h) Subsection 7.2(d) of the Credit Agreement is hereby amended to insert
immediately after the words "and its Restricted Subsidiaries" in the first line
thereof the words "which are Guarantors under the Guarantee and Collateral
Agreement".
(i) Subsection 7.2(p) of the Credit Agreement is hereby amended to (1)
insert a "(i)" immediately prior to the words "of Peabody Energy Australia Pty
Ltd", (2) replace the number "$50,000,000" with the number "$100,000,000" and
(3) insert the following clause immediately after the words "Guarantee and
Collateral Agreement": "and (ii) of any Restricted Subsidiary of Peabody Energy
Australia Pty Ltd or Peabody COALTRADE Australia Pty Ltd to Peabody Energy
Australia Pty Ltd, Peabody COALTRADE Australia Pty Ltd or any other Restricted
Subsidiary thereof".
(j) Subsection 7.3(d) of the Credit Agreement is hereby amended to delete
clause (iii) in its entirety and replace it with the following new clause (iii):
"(iii) Liens on (x) other assets not constituting Collateral or (y)
cash raised to support letters of credit in connection with the
issuance thereof with an aggregate value under clauses (x) and (y)
for all such assets and cash not in excess of $100,000,000 at any
time, in each case to secure obligations under other surety bonds,
synthetic letters of credit, synthetic term loans, credit linked
deposits or other obligations of like nature".
(k) Subsection 7.9(l) of the Credit Agreement is hereby amended to insert
immediately after the words "Unrestricted Subsidiaries", the words ", Restricted
Subsidiaries".
(l) Subsection 7.9(p) of the Credit Agreement is hereby amended to (1)
insert a "(i)" immediately prior to the words "by the Borrower", (2) insert the
following new clause immediately after the words "not to exceed $50,000,000":
"and (ii) by any Restricted Subsidiary in Peabody Energy Australia Pty Ltd or in
Peabody COALTRADE Australia Pty Ltd to Peabody Energy Australia Pty Ltd, Peabody
COALTRADE Australia Pty Ltd or any other Restricted Subsidiary thereof" and (3)
replace the number "$50,000,000" with the number "$100,000,000".
(m) Subsection 7.9 of the Credit Agreement is hereby further amended to
(1) delete the word "and" at the end of subsection 7.9(o); (2) replace the "."
at the end of subsection 7.9(p) with "; and" and (3) add the following new
subsection 7.9(q):
"(q) Investments by the Borrower or its Restricted Subsidiaries made
to effect any Specified Acquisition; provided that: (a) immediately
prior to and after giving effect to such Specified Acquisition, no
Default or Event of Default shall have occurred and be continuing
and (b) the Borrower shall be in pro forma compliance with the
covenants contained in subsection 7.1, calculated based on
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the relevant financial statements delivered pursuant to subsection
6.1 and based on the financial statements with respect to such
Specified Acquisition meeting the requirements set forth in the last
proviso of the definition of Consolidated EBITDA, as though such
Specified Acquisition occurred at the beginning of the period
covered thereby, and the Borrower shall have certified as to both
subclause (a) and (b) to the Administrative Agent in writing."
(n) Subsection 7.14 of the Credit Agreement is hereby amended to insert
the following sentence at the end thereof:
"Notwithstanding the foregoing, the Borrower or any of its
Restricted Subsidiaries who are Guarantors may enter into agreements
in connection with the incurrence of indebtedness permitted by
subsection 7.2(d) which prohibit or limit the ability of the
Borrower or such Restricted Subsidiary to create, incur, assume or
suffer to exist any Lien upon any of its property, assets or
revenue, whether now owned or hereafter acquired except that no such
prohibition or limitation shall apply with respect to the Liens
which secure the Obligations."
(o) Schedule I to the Credit Agreement is hereby deleted in its entirety
and replaced with the Schedule I attached hereto as Exhibit A.
(p) Exhibit H to the Credit Agreement is hereby deleted in its entirety
and replaced with the Exhibit H attached hereto as Exhibit B.
SECTION 2 Additional Amendments to Credit Agreement. Upon the
satisfaction of the applicable conditions precedent set forth in Section 4, the
Credit Agreement is hereby further amended as follows:
(a) The following new definitions are hereby added to subsection 1.1 of
the Credit Agreement:
"Acquisition Closing Date": the earliest date on which any Specified
Acquisition is consummated.
"Acquisition Notes": up to $500,000,000 in aggregate principal
amount of senior or senior subordinated notes of the Borrower issued
on or prior to the Acquisition Closing Date to finance all or a
portion of the Specified Acquisitions (the "Initial Acquisition
Notes"), and any senior or senior subordinated notes of the Borrower
having the same principal amount and other terms as the Initial
Acquisition Notes issued in exchange for the Initial Acquisition
Notes as contemplated by the Acquisition Notes Documents.
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"Acquisition Notes Documents": the Acquisition Notes Indenture, the
Australian Acquisition Notes Indenture, the Acquisition Notes, the
Australian Acquisition Notes and any registration rights agreements
and purchase agreements executed in connection therewith, in each
case, in form and substance reasonably satisfactory to the
Administrative Agent.
"Acquisition Notes Indenture": the Indenture among the Borrower, the
guarantors named therein and the trustee named therein, as trustee,
pursuant to which the Acquisition Notes are issued, in form and
substance reasonably satisfactory to the Administrative Agent.
"Australian Acquisition Notes": up to $100,000,000 in aggregate
principal amount of senior or senior subordinated notes of Peabody
Energy Australia Pty Ltd issued on or prior to the Acquisition
Closing Date to finance, or within 180 days thereof to refinance, a
portion of the Specified Acquisitions (the "Initial Australian
Acquisition Notes"), and any senior or senior subordinated notes of
Peabody Energy Australia Pty Ltd having the same principal amount
and other terms as the Initial Australian Acquisition Notes issued
in exchange for the Initial Australian Acquisition Notes as
contemplated by the Acquisition Notes Documents.
"Australian Acquisition Notes Indenture": the Indenture among
Peabody Energy Australia Pty Ltd (or any Subsidiary thereof) as
issuer, and the Borrower, as guarantor, and the trustee named
therein, as trustee, pursuant to which the Australian Acquisition
Notes are issued, in form and substance satisfactory to the
Administrative Agent.
(b) The definition of "Change of Control" contained in subsection 1.1 of
the Credit Agreement is hereby amended to delete the final parenthetical therein
in its entirety and replace it with the following clause: " or similar term (as
defined in the Senior Notes Indenture as in effect on the Effective Date, or in
the Acquisition Notes Indenture or the Australian Acquisition Notes Indenture,
in each case, as of the date of their respective issuance)".
(c) Subsection 4.5 of the Credit Agreement is hereby amended to replace
the words "and the Senior Notes Documents" with the words ", the Senior Notes
Documents and the Acquisition Notes Documents".
(d) Subsection 4.26 of the Credit Agreement is hereby amended to replace
the words "and under the Senior Notes Documents" with the words "and under the
Senior Notes Documents and the Acquisition Notes Documents".
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(e) Subsection 7.2 of the Credit Agreement is hereby amended to (1) delete
the word "and" at the end of subsection 7.2(o); (2) replace the "." at the end
of subsection 7.2(p) with "; and" and (3) add the following new subsection
7.2(q):
"(q) unsecured Indebtedness of the Borrower under the Acquisition
Notes and unsecured Indebtedness of Peabody Energy Australia Pty Ltd
or a Subsidiary thereof under the Australian Acquisition Notes in an
amount not to exceed $100,000,000; provided that the aggregate
amount of Indebtedness permitted under this subsection 7.2(q) may
not exceed $500,000,000 in the aggregate less the aggregate amount
of any other Indebtedness incurred to finance any Specified
Acquisition."
(f) Subsection 7.4(b) of the Credit Agreement is hereby deleted in its
entirety and replaced with the following:
"(b) guarantees (i) made by the Subsidiaries of the Borrower
pursuant to the Senior Notes Indenture or the Acquisition Notes
Indenture; provided that such Subsidiaries are parties to the
Guarantee and Collateral Agreement and (ii) made by the Borrower
pursuant to the Australian Acquisition Notes Indenture".
(g) Subsection 7.4(h) of the Credit Agreement is hereby amended to replace
the words "and the Senior Notes Documents" with the words "the Senior Notes
Documents and the Acquisition Notes Documents".
(h) Subsection 7.9(n) of the Credit Agreement is hereby amended to replace
the words "of Senior Notes" with the words "of Senior Notes, Acquisition Notes
or Australian Acquisition Notes, in each case,".
(i) Subsection 7.10(a) of the Credit Agreement is hereby deleted its
entirety and restated as follows:
"(a) (1) Make any optional payment or prepayment on or redemption or
purchase of, or deliver any funds to any trustee for the prepayment,
redemption or defeasance of (x) the Senior Notes (whether upon
acceleration of the maturity thereof, upon a "Change of Control" (as
defined in the Senior Notes Indenture) or otherwise), (y) the
Acquisition Notes (whether upon acceleration of the maturity
thereof, upon a "Change of Control" or any similar term (as defined
in the Acquisition Notes Indenture) or otherwise) or (z) the
Australian Acquisition Notes (whether upon acceleration of the
maturity thereof, upon a "Change of Control" or any similar term (as
defined in the Australian Acquisition Notes Indenture) or
otherwise), provided that, the Borrower may (i) prepay the Senior
Notes, the Acquisition Notes or the Australian Acquisition Notes in
connection with a refinancing of such notes on terms no less
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favorable to the Borrower and the Lenders and (ii) make any other
optional payment, prepayment, redemption, purchase or defeasance
during the term of this Agreement in an aggregate amount not in
excess of $100,000,000, or (2) amend, modify or change, or consent
or agree to any amendment, modification or change to any of the
material terms of any Senior Notes Documents or the Acquisition
Notes Documents (other than any such amendment, modification or
change which would extend the maturity or reduce the amount of any
payment of principal thereof or which would reduce the rate or
extend the date for payment of interest thereon)."
(j) Subsection 7.10(c) of the Credit Agreement is hereby amended to
replace the words "any of the Senior Notes Documents" with the words "any of the
Senior Notes Documents or the Acquisition Notes Documents, in each case".
(k) Subsection 7.14 of the Credit Agreement is hereby amended to replace
the words "the Senior Notes Documents" in clause (b) thereof with the words "the
Senior Notes Documents or the Acquisition Notes Documents".
SECTION 3 Additional Amendments to Credit Agreement to be Effective on
the Acquisition Term Loan Effective Date. Upon satisfaction of the applicable
conditions precedent set forth in Sections 4 and 5, the Credit Agreement is
hereby further amended as follows:
(a) The following new definitions are hereby added to subsection 1.1 of
the Credit Agreement:
"Acquisition Closing Date": the earliest date on which any
Specified Acquisition is consummated.
"Acquisition Term Loan Commitment Date": the 90th day
following the Repricing Effective Date.
"Acquisition Term Loan Lender": any Lender having an
Acquisition Term Loan Commitment or an Acquisition Term Loan
Outstanding.
"Acquisition Term Loans": the Loans made by the Acquisition
Term Loan Lenders pursuant to subsection 2.1(a)(iii).
"Acquisition Term Loan Commitment": the commitment of an
Acquisition Term Loan Lender as set forth on Schedule 1 to the
Lender Addendum delivered by such Lender (or, as the case may be, in
the Assignment and Acceptance pursuant to which such Lender became a
party hereto, as the same may be changed from time to time pursuant
to the terms hereof) to make an Acquisition Term Loan to the
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Borrower pursuant to subsection 2.1(a)(iii); provided that the
original aggregate amount of the Acquisition Term Loan Commitments
shall not exceed $500,000,000 (less the aggregate amount of any
other Indebtedness incurred to finance any Specified Acquisition).
"Repricing Effective Date": the date on which the amendment
contained in Section 1(o) of the Second Amendment became effective
in accordance with its terms, which for all purposes under this
Agreement will be deemed to be March 9, 2004.
"Tranche B Term Loans": the Loans made by the Term Lenders to
the Borrower pursuant to subsection 2.1(a)(i).
(b) The definition of "Term Loans" contained in subsection 1.1 of the
Credit Agreement is hereby amended and restated in its entirety as follows:
`"Term Loans": the Tranche B Term Loans and the Acquisition Term
Loans."
(c) The definition of "Term Loan Commitment" contained in subsection 1.1
of the Credit Agreement is hereby amended to (1) replace the cross reference
"subsection 2.1(a)(i)" with "subsection 2.1(a)(i) or (iii)" and (2) replace the
phrase "which shall be $450,000,000" with the following phrase:
"which shall be equal to the sum of $450,000,000 plus any
Acquisition Term Loan Commitments received by the Administrative
Agent on or prior to the Acquisition Term Loan Commitment Date
(provided that such Acquisition Term Loan Commitments shall not
exceed $500,000,000, less the aggregate amount of any other
Indebtedness incurred to finance any Specified Acquisition)".
(d) The definition of "Type" contained in subsection 1.1 of the Credit
Agreement is hereby amended to replace the phrase "a Term Loan" with the
following phrase: "a Tranche B Term Loan, an Acquisition Term Loan".
(e) Subsection 2.1 of the Credit Agreement is hereby amended to (1)
replace the defined term "Term Loans" in each place it appears in subsection
2.1(a)(i) with the defined term "Tranche B Term Loans" and (2) add the following
new subsection 2.1(a)(iii):
"(iii) Acquisition Term Loans. So long as the Acquisition Closing
Date is on or prior to the Acquisition Term Loan Commitment Date,
each Acquisition Term Loan Lender severally agrees to make a term
loan to the Borrower on the Acquisition Closing Date in an aggregate
principal amount equal to such Lender's Acquisition Term Loan
Commitment. Acquisition Term Loan Commitments not funded on the
Acquisition Closing Date, or
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if earlier, the Acquisition Term Loan Commitment Date, will
terminate without further obligation or liability of the Acquisition
Term Loan Lenders to the Borrower with respect thereto. Proceeds of
the Acquisition Term Loans not used to fund a Specified Acquisition
on the Acquisition Closing Date shall be deposited in a cash
collateral account under the control of the Administrative Agent for
the benefit of the Secured Parties and invested in Cash Equivalents
(as directed by the Borrower) until (i) used to fund a Specified
Acquisition or (ii) directed by the Borrower to be used to repay the
Acquisition Term Loans in accordance with Section 2.6."
(f) Subsection 2.5(a) of the Credit Agreement is hereby amended (1) to
replace the defined term "Term Loans" in each place it appears therein with the
defined term "Tranche B Term Loans", (2) insert a "(i)" immediately prior to the
phrase "The Borrower shall make" and (3) insert the following new subsection
2.5(a)(ii):
"(ii) Scheduled Payments of Acquisition Term Loans. The Borrower
shall make principal payments on all of the Acquisition Term Loans
on March 31, June 30, September 30 and December 31 of each year, (i)
commencing on September 30, 2004 and ending on March 31, 2009, in an
amount equal to .25% of the aggregate amount of Acquisition Term
Loans funded on the Acquisition Closing Date and (ii) on June 30,
2009, September 30, 2009, December 31, 2009 and the Termination
Date, in an amount on each such date equal to 25% of the aggregate
amount of Acquisition Term Loans outstanding on June 30, 2009;
provided that the scheduled installments of principal of the
Acquisition Term Loans set forth in this subsection 2.5(a)(ii) shall
be reduced in connection with any voluntary or mandatory prepayments
of the Acquisition Term Loans in accordance with subsection 2.6 (as
provided in such subsection); and provided further than the
Acquisition Term Loans and all other amounts owed hereunder with
respect to the Acquisition Term Loans shall be paid in full no later
than the Termination Date, and the final installment payable by the
Borrower in respect of the Acquisition Term Loans on such date shall
be in an amount, if such amount is different from that specified
above, sufficient to repay all amounts owing by the Borrower under
this Agreement with respect to the Acquisition Term Loans.
(g) Subsection 4.15 of the Credit Agreement is hereby amended to insert
the following sentence at the end thereof:
"Notwithstanding the foregoing, proceeds from the Acquisition Term
Loans shall be used solely to pay a portion of the purchase price of
the Specified Acquisitions and pay related fees and expenses."
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(h) Schedule I to the Credit Agreement is hereby amended to include
thereon the Applicable Margin agreed to by the Acquisition Term Loan Lenders and
the Borrower for the Acquisition Term Loans; provided that if such Applicable
Margin is greater than the Applicable Margin for the Tranche B Term Loans,
Schedule I to the Credit Agreement is hereby additionally amended to increase
the Applicable Margin for the Tranche B Term Loans so that it is equal to the
Applicable Margin for the Acquisition Term Loans.
SECTION 4 Conditions to Effectiveness of All Amendments.
(a) The effectiveness of each of the amendments contained in Section 1, 2
and 3 of this Amendment is conditioned upon satisfaction of the following
conditions precedent:
(i) the Administrative Agent shall have received signed written
authorization from the Required Lenders to execute this Amendment and
counterparts of this Amendment signed by the Borrower and counterparts of
the Consent of Credit Parties attached hereto (the "Consent") signed by
the Credit Parties;
(ii) each of the representations and warranties in Section 6 below
shall be true and correct in all material respects as of the date on which
such amendment becomes effective;
(iii) in consideration of this Amendment, the Borrower shall have
paid to the Administrative Agent, for the account of each Revolving Credit
Lender that executes and returns to the Administrative Agent its consent
no later than 5:00 p.m. (New York time) on March 2, 2004, a fee equal to
0.025% of such Lender's Revolving Commitment (prior to giving effect to
any increase thereof pursuant to this Amendment) and the Administrative
Agent shall have received payment in immediately available funds of all
reasonable out-of-pocket costs and expenses incurred by the Administrative
Agent (including, without limitation, legal fees) and by Wachovia Bank,
National Association, in each case, for which invoices have been
presented;
(iv) the Administrative Agent shall have received the executed legal
opinion of (x) Simpson, Thacher & Bartlett LLP, counsel to the Borrower
and special New York counsel to the other Credit Parties, (y) Jeffery
Klinger, Esq., special Missouri counsel to the Borrower and in-house
counsel to the other Credit Parties, in each case, in form and substance
reasonably acceptable to the Administrative Agent; and
(v) the Administrative Agent shall have received such other
documents, instruments and opinions as it shall have reasonably requested,
including, without limitation, modifications to the Mortgages.
(b) The effectiveness of the amendments contained in Sections 1(d) and (f)
and Section 3 of this Amendment are further conditioned upon the Administrative
Agent's receipt of signed written authorization from the Requisite Class Lenders
to execute this Amendment.
(c) The effectiveness of the amendment contained in Section 1(o) of this
Amendment is further conditioned upon the Administrative Agent's receipt of
signed written authorization
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from all Term Lenders holding Term Loans (prior to the effectiveness of any
amendments contained in Section 2 hereof) to execute this Amendment.
(d) The effectiveness of the amendments contained in Section 2 of this
Amendment is further conditioned on the Administrative Agent's receipt, no later
than 5 Business Days prior to the estimated Acquisition Closing Date, of a
certificate of a Responsible Officer stating that the Borrower intends to
finance the Specified Acquisitions in whole or in part with the proceeds of the
Acquisition Notes and/or the Australian Acquisition Notes.
SECTION 5 Additional Conditions to Effectiveness of Section 3
Amendments. The effectiveness of the amendments contained in Section 3 of this
Amendment and of the requirement of any Acquisition Term Loan Lender to fund the
Acquisition Term Loans on the Acquisition Closing Date are additionally
conditioned upon satisfaction of the following conditions precedent on or prior
to the 90th day after the effectiveness of Section 1(o) of this Amendment (the
date on which all such conditions have been satisfied (in addition to the prior
satisfaction of the conditions set forth in Sections 4(a) and (b) being referred
to herein as the "Acquisition Term Loan Effective Date"):
(a) Each of the representations and warranties in Section 6 below shall be
true and correct in all material respects on and as of the Acquisition Term Loan
Effective Date;
(b) The Administrative Agent shall have received (i) additional
commitments from banks and other financial institutions with respect to the
Acquisition Term Loans in an aggregate principal amount equal to the lesser of
(A) $500,000,000 and (B) the amount intended to be borrowed by the Borrower on
the Acquisition Closing Date and (ii) a fully executed Lender Addendum with
respect to each such bank or other financial institution committing to fund such
Acquisition Term Loans (and pursuant to which on the Acquisition Term Loan
Effective Date such bank or other financial institution shall become an
Acquisition Term Loan Lender for all purposes under the Credit Agreement and the
other Credit Documents);
(c) The Administrative Agent shall have received payment in immediately
available funds of all reasonable out-of-pocket costs and expenses incurred by
the Administrative Agent (including, without limitation, legal fees) and by
Wachovia Bank, National Association, in each case, for which invoices have been
presented, on or before the Acquisition Term Loan Effective Date;
(d) The Borrower shall have paid to each of the Lenders with Acquisition
Term Loan Commitments any applicable upfront fees; and
(e) The Administrative Agent shall have received such other documents,
instruments, and opinions as it may reasonably request, including, without
limitation, a solvency certificate.
SECTION 6 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 Amendment and the Consent, as
applicable, and to perform
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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 Amendment, 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)No Legal Bar. The execution and delivery of this Amendment and of the
Consent by each Credit Party party thereto, and the performance of the Credit
Agreement and each other Credit Document, as amended hereby, by the Borrower and
each other Credit Party party thereto, the borrowing and the use of proceeds of
the Loans made pursuant to the increase in the Revolving Credit Commitment and
the Acquisition Term Loans: (i) will not violate any Requirement of Law or any
Contractual Obligation applicable to or binding, the Borrower any Restricted
Subsidiary or any of their respective properties or assets and (ii) will not
result in the creation or imposition of a Lien on any of its properties or
assets pursuant to any Requirement of Law applicable to it or any of its
Contractual Obligations, except for the Liens arising under the Credit
Documents.
(c)Enforceability. This Amendment has been duly executed and delivered by
the Borrower. The Consent has been duly executed and delivered by each Credit
Party. This Amendment, 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.
(d)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.
(e)No Default. Both immediately before and after giving effect to the
amendments set forth in Section 1, 2 and 3 hereof, or any portion thereof, no
event has occurred and is continuing that constitutes a Default or Event of
Default.
SECTION 7 Reference to and Effect on Credit Agreement.
(a) Upon and after the effectiveness of this Amendment, 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.
(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
13
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 Amendment 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.
(d) For the avoidance of doubt, the amendments contained in Section 1
hereof may become and thereafter will remain effective regardless of whether the
amendments contained in Section 2 or 3 hereof become effective, and the
amendments in Section 2 or Section 3 hereof may become and therafter will remain
effective regardless of whether the amendments contained in the other such
Section become effective.
SECTION 8 Counterparts. This Amendment 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 Amendment by
facsimile shall be effective as delivery of a manually executed counterpart of
this Amendment or such Consent.
SECTION 9 Severability. Any provision of this Amendment 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 10 Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
(signature page follows)
14
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereunto duly authorized, as of the
date first written above.
PEABODY ENERGY CORPORATION,
a Delaware corporation
By: ____________________________________
Name:
Title:
FLEET NATIONAL BANK,
as Administrative Agent, on behalf of the
Required Lenders
By: ____________________________________
Name:
Title:
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Syndication Agent
By: ____________________________________
Name:
Title:
LEHMAN COMMERCIAL PAPER INC.,
as Syndication Agent
By: ____________________________________
Name:
Title:
CONSENT OF CREDIT PARTIES
DATED AS OF MARCH 8, 2004
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. 2), as applicable, each hereby consents and agrees to
the foregoing Amendment No. 2 and hereby confirms and agrees that (i) each of
the Guarantee and Collateral Agreement, the 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 all or any portion of, said Amendment No.
2, 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. 2 (or such portion thereof), (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 pages follow)
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
ARCLAR COMPANY, LLC
ARID OPERATIONS INC.
BEAVER DAM COAL COMPANY
BIG RIDGE, INC.
BIG SKY 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
BTU WORLDWIDE, INC.
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.
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
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
NORTH PAGE COAL CORP.
OHIO COUNTY COAL COMPANY
PDC PARTNERSHIP HOLDINGS, INC.
PEABODY AMERICA, INC.
PEABODY COAL COMPANY
PEABODY COALSALES COMPANY
PEABODY COALTRADE, INC.
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
SUGAR CAMP PROPERTIES
YANKEETOWN DOCK CORPORATION
By: ____________________________________
Name:
Title:
(signatures continued next page)
BLACK BEAUTY COAL COMPANY
By: Thoroughbred, L.L.C.,
a Delaware limited liability company, its Partner
By: ____________________________________
Name:
Title:
BLACK HILLS MINING CO., LLC
By: Peabody Energy Corporation,
a Delaware corporation, its Sole Member
By: ____________________________________
Name:
Title:
BLACK STALLION COAL COMPANY, LLC
By: Black Walnut Coal Company,
its Sole Member
By: ____________________________________
Name:
Title:
BTU VENEZUELA LLC
By: Peabody Energy Corporation,
a Delaware corporation, its Sole Member
By: ____________________________________
Name:
Title:
COLONY BAY COAL COMPANY
By: Charles Coal Company,
a Delaware corporation, its General Partner
By: ____________________________________
Name:
Title:
(signatures continued next page)
CYPRUS CREEK LAND RESOURCES, LLC
By: Peabody Development Company, LLC
By: Peabody Holding Company, Inc.
a New York corporation, its Sole Member
By: ____________________________________
Name:
Title:
KANAWHA RIVER VENTURES I, LLC
By: Snowberry Land Company,
its Member
By: ____________________________________
Name:
Title:
MUSTANG ENERGY COMPANY, L.L.C.
By: Peabody Energy Corporation,
a Delaware corporation, its Sole Member
By: ____________________________________
Name:
Title:
PATRIOT COAL COMPANY, L.P.
By: Bluegrass Coal Company,
a Delaware corporation, its Partner
By: ____________________________________
Name:
Title:
By: Sentry Mining Company,
a Delaware corporation, its Partner
By: ____________________________________
Name:
Title:
(signatures continued next page)
PEABODY ARCHVEYOR, L.L.C.
By: Gold Fields Mining Corporation,
a Delaware corporation, its Sole Member
By: ____________________________________
Name:
Title:
PEABODY DEVELOPMENT COMPANY, LLC
By: Peabody Holding Company, Inc.
a New York corporation, its Sole Member
By: ____________________________________
Name:
Title:
PEABODY DEVELOPMENT LAND HOLDINGS, LLC
By: Peabody Development Company, LLC
By: Peabody Holding Company, Inc.
a New York corporation, its Sole Member
By: ____________________________________
Name:
Title:
By: Peabody Holding Company, Inc.,
a New York corporation, its Member
By: ____________________________________
Name:
Title:
PEABODY NATURAL GAS, LLC
By: Peabody Holding Company, Inc.,
a New York corporation, its Sole Member
By: ____________________________________
Name:
Title:
(signatures continued next page)
PEABODY NATURAL RESOURCES COMPANY
By: Gold Fields Mining Corporation,
a Delaware corporation, its Partner
By: ____________________________________
Name:
Title:
By: Peabody America, Inc.,
a Delaware corporation, its Partner
By: ____________________________________
Name:
Title:
PEABODY POWERTREE INVESTMENTS, LLC
By: Peabody Energy Corporation,
a Delaware corporation, its Sole Member
By: ____________________________________
Name:
Title:
PEABODY RECREATIONAL LANDS, L.L.C.
By: Peabody Development Company, LLC
By: Peabody Holding Company, Inc.
a New York corporation, its Sole Member
By: ____________________________________
Name:
Title:
PEABODY-WATERSIDE DEVELOPMENT, L.L.C.
By: Peabody Development Company, LLC
By: Peabody Holding Company, Inc.
a New York corporation, its Sole Member
By: ____________________________________
Name:
Title:
(signatures continued next page)
PEC EQUIPMENT COMPANY, LLC
By: Peabody Energy Corporation,
a Delaware corporation, its Sole Member
By: ____________________________________
Name:
Title:
POINT PLEASANT DOCK COMPANY, LLC
By: Peabody Energy Corporation,
a Delaware corporation, its Sole Member
By: ____________________________________
Name:
Title:
POND CREEK LAND RESOURCES, LLC
By: Peabody Coal Company,
a Delaware corporation, its Sole Member
By: ____________________________________
Name:
Title:
PORCUPINE PRODUCTION, LLC
By: Peabody Development Company, LLC
By: Peabody Holding Company, Inc.
a New York corporation, its Sole Member
By: ____________________________________
Name:
Title:
PORCUPINE TRANSPORTATION, LLC
By: Peabody Development Company, LLC
By: Peabody Holding Company, Inc.
a New York corporation, its Sole Member
By: ____________________________________
Name:
Title:
(signatures continued next page)
PRAIRIE STATE GENERATING COMPANY, LLC
By: Peabody Energy Corporation,
a Delaware corporation, its Sole Member
By: ____________________________________
Name:
Title:
STAR LAKE ENERGY COMPANY, L.L.C.
By: Peabody Energy Corporation,
a Delaware corporation, its Sole Member
By: ____________________________________
Name:
Title:
THOROUGHBRED, L.L.C.
By: Peabody Holding Company, Inc.,
a New York corporation, its Member
By: ____________________________________
Name:
Title:
By: Peabody Development Company, LLC
By: Peabody Holding Company, Inc.
a New York corporation, its Sole Member
By: ____________________________________
Name:
Title:
THOROUGHBRED GENERATING COMPANY, LLC
By: Peabody Energy Corporation,
a Delaware corporation, its Sole Member
By: ____________________________________
Name:
Title:
(signatures continued next page)
THOROUGHBRED MINING COMPANY, L.L.C.
By: Peabody Energy Corporation,
a Delaware corporation, its Sole Member
By: ____________________________________
Name:
Title:
WILLIAMSVILLE COAL COMPANY, LLC
By: Midwest Coal Acquisition Corp.,
its Sole Member
By: ____________________________________
Name:
Title:
EXHIBIT A
Schedule I
to Credit Agreement
Pricing Grids
CONSOLIDATED REVOLVING REVOLVING TRANCHE B TRANCHE B
TOTAL CREDIT FACILITY CREDIT FACILITY TERM LOAN TERM LOAN
OBLIGATIONS TO APPLICABLE APPLICABLE APPLICABLE APPLICABLE
CONSOLIDATED MARGIN - MARGIN - BASE MARGIN - MARGIN - BASE
EBITDA RATIO LIBOR RATE RATE LIBOR RATE RATE
- -------------- --------------- --------------- ---------- -------------
> or = 3.75x 2.500% 1.500% 1.75% 0.75%
> or = 3.25x 2.250% 1.250% 1.75% 0.75%
> or = 2.75x 2.000% 1.000% 1.75% 0.75%
> or = 2.25x 1.750% 0.750% 1.75% 0.75%
< 2.25x 1.500% 0.500% 1.75% 0.75%
COMMITMENT
USAGE RATIO FEE
----------- ----------
> or = 66.67% 0.250%
> or = 33.33% 0.375%
< 33.33% 0.500%
EXHIBIT B
FORM OF LENDER ADDENDUM
Reference is made to the Second Amended and Restated Credit
Agreement, dated as of March 21, 2003 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among Peabody Energy
Corporation, a Delaware corporation ("Borrower"), Fleet National Bank, as
administrative agent ("Administrative Agent") for the Agents and Lenders parties
thereto, Fleet Securities, Inc., Wachovia Capital Markets, LLC (f/k/a Wachovia
Securities, Inc.) and Lehman Brothers Inc., as arrangers ("Arrangers"), Wachovia
Bank, National Association and Lehman Commercial Paper Inc., as syndication
agents ("Syndication Agents") and Morgan Stanley Senior Funding, Inc. and U.S.
Bank National Association, as documentation agents ("Documentation Agents").
Unless otherwise defined herein, terms defined in the Credit Agreement and used
herein shall have the meanings given to them in the Credit Agreement.
Upon execution and delivery of this Lender Addendum by the parties
hereto as provided in Section 10.18 of the Credit Agreement, the undersigned
hereby [becomes a Lender thereunder having the Commitments] [increases its
commitment under the Credit Agreement] as set forth in Schedule 1 hereto,
effective as of the [Acquisition Term Loan Effective Date] [___________, 2004].
THIS LENDER ADDENDUM SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
This Lender Addendum may be executed by one or more of the parties
hereto on any number of separate counterparts, and all of said counterparts
taken together shall be deemed to constitute one and the same instrument.
Delivery of an executed signature page hereof by facsimile transmission shall be
effective as delivery of a manually executed counterpart hereof.
[Signature page to follow]
B-1
IN WITNESS WHEREOF, the parties hereto have caused this Lender
Addendum to be duly executed and delivered by their proper and duly authorized
officers as of this ____ day of ______________, 200_.
________________________________
Name of Lender
By: ____________________________
Name:
Title:
Accepted and agreed:
PEABODY ENERGY CORPORATION
By: ______________________________
Name:
Title:
FLEET NATIONAL BANK, as
Administrative Agent
By:_______________________________
Name:
Title:
B-2
SCHEDULE 1
COMMITMENTS AND NOTICE ADDRESS
1. Name of Lender: ___________________________________
Notice Address: ___________________________________
___________________________________
___________________________________
Attention: ___________________________________
Telephone: ___________________________________
Facsimile: ___________________________________
2. Revolving Credit Commitment:
3. Acquisition Term Loan Commitment: