EXHIBIT 4.3
SEVENTH SUPPLEMENTAL INDENTURE
Seventh Supplemental Indenture (this "SUPPLEMENTAL INDENTURE"), dated as of
June 13, 2006, 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 below) 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; Fourth Supplemental Indenture,
dated January 20, 2005; Fifth Supplemental Indenture, dated September 30, 2005;
and Sixth Supplemental Indenture, dated January 20, 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 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. Each of 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.
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(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 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.
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(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 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.
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
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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
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
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
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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
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
KAYENTA MOBILE HOME PARK, INC.
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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
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POND RIVER LAND COMPANY
PORCUPINE PRODUCTION, LLC
PORCUPINE TRANSPORTATION, LLC
POWDER RIVER COAL, LLC
f/k/a POWDER RIVER COAL COMPANY
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:
BTU WESTERN RESOURCES, INC.
By: /s/ WALTER L. HAWKINS, JR.
------------------------------------
Name: Walter L. Hawkins, Jr.
Title: Vice President & Treasurer
FORT ENERGY, 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
BTU Western Resources, Inc., a Delaware corporation
Fort Energy, LLC, a Delaware limited liability company
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