EXHIBIT 4.2
FIFTH SUPPLEMENTAL INDENTURE
Fifth Supplemental Indenture (this "SUPPLEMENTAL INDENTURE"), dated as
of September 30, 2005, among the entities listed on Schedule 1 attached hereto
("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 U.S. 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 the First Supplemental Indenture dated as of March 23, 2004 to the
Indenture dated as of March 19, 2004, (the "BASE INDENTURE," and, together with
the First Supplemental Indenture, the "INDENTURE") providing for the issuance of
an unlimited amount of 5-7/8% Senior Notes due 2016 (the "NOTES"); as
supplemented by the Second Supplemental Indenture, dated as of April 22, 2004;
Third Supplemental Indenture, dated October 18, 2004; and Fourth Supplemental
Indenture, dated January 20, 2005;
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 and
the Indenture on the terms and conditions set forth herein (the "SUBSIDIARY
GUARANTEE"); and
WHEREAS, pursuant to Section 9.01 of the Base 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 agrees
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.
(b) The obligations hereunder shall be unconditional, irrespective of
the validity, regularity or enforceability of the Notes or 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.
(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
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guaranteed hereby may be accelerated as provided in Article 6 of
the First Supplemental 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 First Supplemental 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 9.04 of the First Supplemental 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 9 of the First Supplemental
Indenture shall result in the obligations of such Subsidiary
Guarantor under its 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 Subsidiary Guarantor is the
surviving Person) another corporation, Person or entity whether
or not affiliated with such Subsidiary Guarantor unless:
(i) subject to Section 9.04 of the First Supplemental 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,
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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 First Supplemental
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 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 First
Supplemental 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.
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(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 9 of the First Supplemental 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 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.
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.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
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
EXISTING SUBSIDIARY GUARANTORS:
AFFINITY MINING COMPANY
AMERICAN LAND HOLDINGS OF KENTUCKY,
LLC f/k/a BTU VENEZUELA, LLC
APPALACHIA MINE SERVICES, LLC
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 HILLS MINING COMPANY, LLC
BLACK STALLION COAL COMPANY, LLC
BLACK WALNUT COAL COMPANY
BLUEGRASS COAL COMPANY
BTU EMPIRE CORPORATION
CABALLO COAL COMPANY
CENTRAL STATES COAL RESERVES OF
ILLINOIS, LLC
f/k/a PEABODY DEVELOPMENT LAND
HOLDINGS, LLC
CHARLES COAL COMPANY, LLC
f/k/a CHARLES COAL COMPANY
CLEATON COAL COMPANY
COAL PROPERTIES, LLC
f/k/a COAL PROPERTIES CORP.
COALSALES, LLC
COALSALES II, LLC
COALTRADE INTERNATIONAL, LLC
COALTRADE, LLC
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COAL RESERVES HOLDING LIMITED LIABILITY
COMPANY NO. 1
COAL RESERVES HOLDING LIMITED LIABILITY
COMPANY NO. 2
COLONY BAY COAL COMPANY
COLORADO YAMPA COAL COMPANY
COOK MOUNTAIN COAL COMPANY, LLC
f/k/a COOK MOUNTAIN COAL COMPANY
COTTONWOOD LAND COMPANY
COULTERVILLE COAL COMPANY, LLC
f/k/a WILLIAMSVILLE COAL COMPANY, LLC
CYPRUS CREEK LAND COMPANY
CYPRUS CREEK LAND RESOURCES, LLC
DIXON MINING COMPANY, LLC
DODGE HILL HOLDING JV, LLC
DODGE HILL OF KENTUCKY, LLC
DODGE HILL MINING COMPANY, LLC
EACC CAMPS, INC.
EAGLE COAL COMPANY
EASTERN ASSOCIATED COAL, LLC
f/k/a EASTERN ASSOCIATED COAL CORP.
EASTERN ROYALTY CORP.
EMPIRE MARINE, LLC
FALCON COAL COMPANY
GALLO FINANCE COMPANY
GOLD FIELDS CHILE, LLC
f/k/a GOLD FIELDS CHILE, S.A.
GOLD FIELDS MINING, LLC
GOLD FIELDS ORTIZ, LLC
f/k/a GOLD FIELDS OPERATING CO. -
ORTIZ
GRAND EAGLE MINING, INC.
HAYDEN GULCH TERMINAL, INC.
HIGHLAND MINING COMPANY, LLC
f/k/a HIGHLAND MINING COMPANY
HIGHWALL MINING SERVICES COMPANY
HILLSIDE MINING COMPANY
HMC MINING, LLC
INDEPENDENCE MATERIAL HANDLING
COMPANY
INDIAN HILL COMPANY
INTERIOR HOLDINGS, LLC
f/k/a INTERIOR HOLDINGS CORP.
JAMES RIVER COAL TERMINAL, LLC
f/k/a JAMES RIVER COAL TERMINAL
COMPANY
JARRELL'S BRANCH COAL COMPANY
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JUNIPER COAL COMPANY
KANAWHA RIVER VENTURES I, LLC
KAYENTA MOBILE HOME PARK, INC.
LOGAN FORK COAL COMPANY
MARTINKA COAL COMPANY, LLC
f/k/a MARTINKA COAL COMPANY
MIDCO SUPPLY AND EQUIPMENT
CORPORATION
MIDWEST COAL ACQUISITION CORP.
MOUNTAIN VIEW COAL COMPANY, LLC
f/k/a MOUNTAIN VIEW COAL COMPANY
MUSTANG ENERGY COMPANY, L.L.C.
NORTH PAGE COAL CORP.
OHIO COUNTY COAL COMPANY
PATRIOT COAL COMPANY, L.P.
PDC PARTNERSHIP HOLDINGS, INC.
PEABODY AMERICA, INC.
PEABODY ARCHVEYOR, L.L.C.
PEABODY COAL COMPANY, LLC
f/k/a PEABODY COAL COMPANY
PEABODY DEVELOPMENT COMPANY, LLC
PEABODY ENERGY GENERATION HOLDING
COMPANY
PEABODY ENERGY INVESTMENTS, INC.
PEABODY ENERGY SOLUTIONS, INC.
PEABODY HOLDING COMPANY, INC.
PEABODY INVESTMENTS CORP.
PEABODY NATURAL GAS, LLC
PEABODY NATURAL RESOURCES COMPANY
PEABODY POWERTREE INVESTMENTS, LLC
PEABODY RECREATIONAL LANDS, L.L.C.
PEABODY SOUTHWESTERN COAL COMPANY
PEABODY TERMINALS, LLC
f/k/a PEABODY TERMINALS, INC.
PEABODY VENEZUELA COAL CORP.
PEABODY-WATERSIDE DEVELOPMENT, L.L.C.
PEABODY WESTERN COAL COMPANY
PEC EQUIPMENT COMPANY, LLC
PHC ACQUISITION CORP.
f/k/a RIO ESCONDIDO COAL CORP.
PINE RIDGE COAL COMPANY, LLC
f/k/a PINE RIDGE COAL COMPANY
POINT PLEASANT DOCK COMPANY, LLC
POND CREEK LAND RESOURCES, LLC
POND RIVER LAND COMPANY
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PORCUPINE PRODUCTION, LLC
PORCUPINE TRANSPORTATION, LLC
POWDER RIVER COAL COMPANY
PRAIRIE STATE GENERATING COMPANY, LLC
RANDOLPH LAND HOLDING COMPANY, LLC
RIVERS EDGE MINING, INC.
RIVERVIEW TERMINAL COMPANY
SENECA COAL COMPANY
SENTRY MINING COMPANY
SHOSHONE COAL CORPORATION
SNOWBERRY LAND COMPANY
STAR LAKE ENERGY COMPANY, L.L.C.
STERLING SMOKELESS COAL COMPANY, LLC
f/k/a STERLING SMOKELESS COAL
COMPANY
SUGAR CAMP PROPERTIES
THOROUGHBRED, L.L.C.
THOROUGHBRED GENERATING COMPANY, LLC
THOROUGHBRED MINING COMPANY, L.L.C.
TWENTYMILE COAL COMPANY
UNION COUNTY COAL CO., LLC
YANKEETOWN DOCK, LLC
f/k/a YANKEETOWN DOCK CORPORATION
By: /s/ Walter L. Hawkins, Jr.
------------------------------------
Name: Walter L. Hawkins, Jr.
Title: Vice President
ADDITIONAL GUARANTORS:
AMERICAN LAND DEVELOPMENT, LLC
By: /s/ Walter L. Hawkins, Jr.
------------------------------------
Name: Walter L. Hawkins, Jr.
Title: Vice President & Treasurer
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AMERICAN LAND HOLDINGS OF ILLINOIS, LLC
By: /s/ Walter L. Hawkins, Jr.
------------------------------------
Name: Walter L. Hawkins, Jr.
Title: Vice President & Treasurer
AMERICAN LAND HOLDINGS OF INDIANA, LLC
By: /s/ Walter L. Hawkins, Jr.
------------------------------------
Name: Walter L. Hawkins, Jr.
Title: Vice President & Treasurer
CENTRAL STATES COAL RESERVES OF
KENTUCKY, LLC
By: /s/ Walter L. Hawkins, Jr.
------------------------------------
Name: Walter L. Hawkins, Jr.
Title: Vice President & Treasurer
DYSON CREEK COAL COMPANY, LLC
By: /s/ Walter L. Hawkins, Jr.
------------------------------------
Name: Walter L. Hawkins, Jr.
Title: Vice President & Treasurer
EASTERN COAL COMPANY, LLC
By: /s/ Walter L. Hawkins, Jr.
------------------------------------
Name: Walter L. Hawkins, Jr.
Title: Vice President & Treasurer
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MIDWEST COAL RESERVES OF ILLINOIS, LLC
By: /s/ Walter L. Hawkins, Jr.
------------------------------------
Name: Walter L. Hawkins, Jr.
Title: Vice President & Treasurer
MIDWEST COAL RESERVES OF INDIANA, LLC
By: /s/ Walter L. Hawkins, Jr.
------------------------------------
Name: Walter L. Hawkins, Jr.
Title: Vice President & Treasurer
MIDWEST COAL RESOURCES, LLC
By: /s/ Walter L. Hawkins, Jr.
------------------------------------
Name: Walter L. Hawkins, Jr.
Title: Vice President & Treasurer
NEW MEXICO COAL RESOURCES, LLC
By: /s/ Walter L. Hawkins, Jr.
------------------------------------
Name: Walter L. Hawkins, Jr.
Title: Vice President & Treasurer
PEABODY ELECTRICITY, LLC
By: /s/ Walter L. Hawkins, Jr.
------------------------------------
Name: Walter L. Hawkins, Jr.
Title: Vice President & Treasurer
PEABODY VENTURE FUND, LLC
By: /s/ Walter L. Hawkins, Jr.
------------------------------------
Name: Walter L. Hawkins, Jr.
Title: Vice President & Treasurer
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POWDER RIVER RESOURCES, LLC
By: /s/ Walter L. Hawkins, Jr.
------------------------------------
Name: Walter L. Hawkins, Jr.
Title: Vice President & Treasurer
SCHOOL CREEK COAL COMPANY, LLC
By: /s/ Walter L. Hawkins, Jr.
------------------------------------
Name: Walter L. Hawkins, Jr.
Title: Vice President & Treasurer
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SCHEDULE 1
NEW GUARANTEEING SUBSIDIARIES
AMERICAN LAND DEVELOPMENT, LLC, a Delaware Limited Liability Company
AMERICAN LAND HOLDINGS OF ILLINOIS, LLC, a Delaware Limited Liability Company
AMERICAN LAND HOLDINGS OF INDIANA, LLC, a Delaware Limited Liability Company
CENTRAL STATES COAL RESERVES OF KENTUCKY, LLC, a Delaware Limited Liability
Company
DYSON CREEK COAL COMPANY, LLC, a Delaware Limited Liability Company
EASTERN COAL COMPANY, LLC, a Delaware Limited Liability Company
MIDWEST COAL RESERVES OF ILLINOIS, LLC, a Delaware Limited Liability Company
MIDWEST COAL RESERVES OF INDIANA, LLC, a Delaware Limited Liability Company
MIDWEST COAL RESOURCES, LLC, a Delaware Limited Liability Company
NEW MEXICO COAL RESOURCES, LLC, a Delaware Limited Liability Company
PEABODY ELECTRICITY, LLC, a Delaware Limited Liability Company
PEABODY VENTURE FUND, LLC, a Delaware Limited Liability Company
POWDER RIVER RESOURCES, LLC, a Delaware Limited Liability Company
SCHOOL CREEK COAL COMPANY, LLC a Delaware Limited Liability Company
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