EXHIBIT 4.2
TENTH SUPPLEMENTAL INDENTURE
TENTH SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of
June 30, 2006, 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; Second
Supplemental Indenture, dated as of September 30, 2003; Third Supplemental
Indenture, dated as of February 24, 2004; Fourth Supplemental Indenture, dated
as of April 22, 2004; Fifth Supplemental Indenture, dated as of October 18,
2004; Sixth Supplemental Indenture, dated as of January 20, 2005; Seventh
Supplemental Indenture, dated as of September 30, 2005, Eighth Supplemental
Indenture, dated as of January 20, 2006; and Ninth Supplemental Indenture, dated
as of June 13, 2006.
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. Each of 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 Guarantor 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.
(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.
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(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:
(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
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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
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.
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 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 & Treasurer Title: Vice President
EXISTING SUBSIDIARY GUARANTORS:
AFFINITY MINING COMPANY
AMERICAN LAND DEVELOPMENT, LLC
AMERICAN LAND HOLDINGS OF ILLINOIS, LLC
AMERICAN LAND HOLDINGS OF INDIANA, LLC
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, LLC
f/k/a BLACK BEAUTY RESOURCES, INC.
BLACK BEAUTY UNDERGROUND, INC.
BLACK HILLS MINING COMPANY, LLC
BLACK STALLION COAL COMPANY, LLC
BLACK WALNUT COAL COMPANY
BLUEGRASS MINE SERVICES, LLC
f/k/a BLUEGRASS COAL COMPANY
BTU EMPIRE CORPORATION
BTU WESTERN RESOURCES, INC.
CABALLO COAL COMPANY
CENTRAL STATES COAL RESERVES OF ILLINOIS, LLC
f/k/a PEABODY DEVELOPMENT LAND HOLDINGS, LLC
CENTRAL STATES COAL RESERVES OF INDIANA, LLC
CENTRAL STATES COAL RESERVES OF KENTUCKY, 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
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COALTRADE INTERNATIONAL, LLC
COALTRADE, LLC
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
DYSON CREEK COAL COMPANY, LLC
EACC CAMPS, INC.
EAGLE COAL COMPANY
EASTERN ASSOCIATED COAL, LLC
f/k/a EASTERN ASSOCIATED COAL CORP.
EASTERN COAL COMPANY, LLC
EASTERN ROYALTY CORP.
EMPIRE MARINE, LLC
FALCON COAL COMPANY
FORT ENERGY, LLC
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, LLC
f/k/a 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
JUNIPER COAL COMPANY
KANAWHA RIVER VENTURES I, LLC
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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.
MIDWEST COAL RESERVES OF ILLINOIS, LLC
MIDWEST COAL RESERVES OF INDIANA, LLC
MIDWEST COAL RESOURCES, LLC
MOUNTAIN VIEW COAL COMPANY, LLC
f/k/a MOUNTAIN VIEW COAL COMPANY
MUSTANG ENERGY COMPANY, L.L.C.
NEW MEXICO COAL RESOURCES, LLC
NORTH PAGE COAL CORP.
OHIO COUNTY COAL COMPANY
PATRIOT COAL COMPANY, L.P.
PATRIOT MIDWEST HOLDINGS, LLC
PDC PARTNERSHIP HOLDINGS, LLC
f/k/a 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 ELECTRICITY, LLC
PEABODY ENERGY GENERATION HOLDING COMPANY
PEABODY ENERGY INVESTMENTS, INC.
PEABODY ENERGY SOLUTIONS, INC.
PEABODY HOLDING COMPANY, LLC
f/k/a PHC ACQUISITION CORP.
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 VENTURE FUND, LLC
PEABODY-WATERSIDE DEVELOPMENT, L.L.C.
PEABODY WESTERN COAL COMPANY
PEC EQUIPMENT COMPANY, LLC
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
PORCUPINE PRODUCTION, LLC
PORCUPINE TRANSPORTATION, LLC
POWDER RIVER COAL, LLC
f/k/a POWDER RIVER COAL COMPANY
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POWDER RIVER RESOURCES, LLC
PRAIRIE STATE GENERATING COMPANY, LLC
RANDOLPH LAND HOLDING COMPANY, LLC
RIVERS EDGE MINING, INC.
RIVERVIEW TERMINAL COMPANY
SCHOOL CREEK COAL COMPANY, LLC
SENECA COAL COMPANY
SENTRY MINING, LLC
f/k/a 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
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ADDITIONAL GUARANTORS:
COLORADO COAL RESOURCES, LLC
By: /s/ WALTER L. HAWKINS, JR.
-------------------------------------
Name: Walter L. Hawkins, Jr.
Title: Vice President & Treasurer
PEABODY CARDINAL GASIFICATION, LLC
By: /s/ WALTER L. HAWKINS, JR.
-------------------------------------
Name: Walter L. Hawkins, Jr.
Title: Vice President & Treasurer
WEST ROUNDUP RESOURCES, 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
Colorado Coal Resources, LLC, a Delaware limited liability company
Peabody Cardinal Gasification, LLC, a Delaware limited liability company
West Roundup Resources, Inc., a Delaware corporation
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