SECOND SUPPLEMENTAL SENIOR NOTE INDENTURE
SECOND SUPPLEMENTAL SENIOR NOTE INDENTURE (this "Supplemental Senior Note
Indenture"), dated as of December 31, 1998, among Gallo Finance Company, a
Delaware corporation (together, the "Guaranteeing Subsidiaries"), a subsidiary
of P&L Coal Holdings Corporation (or its permitted successor), a Delaware
corporation (the "Company"), the Company, the other Senior Note Guarantors (as
defined in the Senior Note Indenture referred to herein) and State Street Bank
and Trust Company, as Senior Note Trustee under the Senior Note Indenture
referred to below (the "Senior Note Trustee").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the Senior
Note Trustee a Senior Note Indenture (the "Senior Note Indenture"), dated as of
May 18, 1998 providing for the issuance of an aggregate principal amount of up
to $550.0 million of 8-7/8% Senior Notes due 2008 (the "Senior Notes");
WHEREAS, the Senior Note Indenture provides that under certain
circumstances the Guaranteeing Subsidiary shall execute and deliver to the
Senior Note Trustee a supplemental Senior Note Indenture pursuant to which the
Guaranteeing Subsidiary shall unconditionally guarantee all of the Company's
Obligations under the Senior Notes and the Senior Note Indenture on the terms
and conditions set forth herein (the "Senior Subsidiary Guarantee"); and
WHEREAS, pursuant to Section 9.01 of the Senior Note Indenture, the Senior
Note Trustee is authorized to execute and deliver this Supplemental Senior Note
Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Guaranteeing Subsidiary and the Senior Note Trustee mutually covenant and agree
for the equal and ratable benefit of the Holders of the Senior Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Senior Note Indenture.
2. AGREEMENT TO GUARANTEE. The Guaranteeing Subsidiary hereby agrees
as follows:
(a) Along with all Senior Note Guarantors named in the Senior
Note Indenture, to jointly and severally Guarantee to each Holder of a
Senior Note authenticated and delivered by the Senior Note Trustee and
to the Senior Note Trustee and its successors and assigns,
irrespective of the validity and enforceability of the Senior Note
Indenture, the Senior Notes or the obligations of the Company
hereunder or thereunder, that:
(i) the principal of and interest on the Senior 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 Senior Notes, if any, if
lawful, and all other obligations of the Company to the Holders
or the Senior Note 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 Senior 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 Senior Note 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
Senior Notes or the Senior Note Indenture, the absence of any action
to enforce the same, any waiver or consent by any Holder of the Senior
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 Senior Note 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 Senior Subsidiary Guarantee shall not be discharged
except by complete performance of the obligations contained in the
Senior Notes and the Senior Note Indenture.
(e) If any Holder or the Senior Note Trustee is required by any
court or otherwise to return to the Company, the Senior Note
Guarantors, or any custodian, Senior Note Trustee, liquidator or other
similar official acting in relation to either the Company or the
Senior Note Guarantors, any amount paid by either to the Senior Note
Trustee or such Holder, this Senior Subsidiary Guarantee, to the
extent theretofore discharged, shall be reinstated in full force and
effect.
(f) The Guaranteeing Subsidiary 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 Senior Note Guarantors, on the one hand, and
the Holders and the Senior Note Trustee, on the other hand, (x) the
maturity of the obligations guaranteed hereby may be accelerated as
provided in Article 6 of the Senior Note Indenture for the purposes of
this Senior 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
Senior Note Indenture, such obligations (whether or not due and
payable) shall forthwith become due and payable by the Senior Note
Guarantors for the purpose of this Senior Subsidiary Guarantee.
(h) The Senior Note Guarantors shall have the right to seek
contribution from any non-paying Senior Note Guarantor so long as the
exercise of such right does not impair the rights of the Holders under
the Senior Subsidiary Guarantee.
(i) Pursuant to Section 10.02 of the Senior Note Indenture,
the obligations of the Guaranteeing Subsidiary hereunder and
under Article 10 of the Senior Note Indenture will be limited to
the maximum amount as will, 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 Senior Note Guarantor in respect of the obligations of such
other Senior Note Guarantor under Article 10 of the Senior Note
Indenture, result in the obligations of such Senior Note
Guarantor under its Senior Subsidiary Guarantee not constituting
a fraudulent transfer or conveyance.
3. EXECUTION AND DELIVERY. The Guaranteeing Subsidiary agrees that the
Senior Subsidiary Guarantees shall remain in full force and effect
notwithstanding any failure to endorse on each Senior Note a notation of such
Senior Subsidiary Guarantee.
4. GUARANTEEING SUBSIDIARY MAY CONSOLIDATE, ETC. ON CERTAIN TERMS.
(a) Neither of the Guaranteeing Subsidiary may consolidate with or
merge with or into (whether or not such Senior Note Guarantor is the
surviving Person) another corporation, Person or entity whether or not
affiliated with such Senior Note Guarantor unless:
(i) subject to Section 10.04 of the Senior Note Indenture, the
Person formed by or surviving any such consolidation or merger (if
other than a Senior Note Guarantor or the Company) unconditionally
assumes all the obligations of such Senior Note Guarantor, pursuant to
a supplemental Senior Note Indenture in form and substance reasonably
satisfactory to the Senior Note Trustee, under the Senior Notes, the
Senior Note Indenture and the Senior 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 Senior
Note Indenture, executed and delivered to the Senior Note Trustee and
satisfactory in form to the Senior Note Trustee, of the Senior Subsidiary
Guarantee endorsed upon the Senior Notes and the due and punctual
performance of all of the covenants and conditions of the Senior Note
Indenture to be performed by the Senior Note Guarantor, such successor
corporation shall succeed to and be substituted for the Senior Note
Guarantor with the same effect as if it had been named herein as a Senior
Note Guarantor. Such successor corporation thereupon may cause to be signed
any or all of the Senior Subsidiary Guarantees to be endorsed upon all of
the Senior Notes issuable hereunder which theretofore shall not have been
signed by the Company and delivered to the Senior Note Trustee. All the
Senior Subsidiary Guarantees so issued shall in all respects have the same
legal rank and benefit under the Senior Note Indenture as the Senior
Subsidiary Guarantees theretofore and thereafter issued in accordance with
the terms of the Senior Note Indenture as though all of such Senior
Subsidiary Guarantees had been issued at the date of the execution hereof.
(c) Except as set forth in Articles 4 and 5 of the Senior Note
Indenture, and notwithstanding clauses (a) and (b) above, nothing contained
in the Senior Note Indenture or in any of the Senior Notes shall prevent
any consolidation or merger of a Senior Note Guarantor with or into the
Company or another Senior Note Guarantor, or shall prevent any sale or
conveyance of the property of a Senior Note Guarantor as an entirety or
substantially as an entirety to the Company or another Senior Note
Guarantor.
5. RELEASES.
(a) In the event of a sale or other disposition of all of the assets
of any Senior Note Guarantor, by way of merger, consolidation or otherwise,
or a sale or other disposition of all to the capital stock of any Senior
Note Guarantor, then such Senior Note 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 Senior Note 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 Senior Note Guarantor) will be
released and relieved of any obligations under its Senior Subsidiary
Guarantee; provided that the Net Proceeds of such sale or other disposition
are applied in accordance with the applicable provisions of the Senior Note
Indenture, including without limitation Section 4.10 of the Senior Note
Indenture. Upon delivery by the Company to the Senior Note Trustee of an
Officers' 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 Senior Note Indenture, including without limitation
Section 4.10 of the Senior Note Indenture, the Senior Note Trustee shall
execute any documents reasonably required in order to evidence the release
of any Senior Note Guarantor from its obligations under its Senior
Subsidiary Guarantee.
(b) Any Senior Note Guarantor not released from its obligations under
its Senior Subsidiary Guarantee shall remain liable for the full amount of
principal of and interest on the Senior Notes and for the other obligations
of any Senior Note Guarantor under the Senior Note Indenture as provided in
Article 10 of the Senior Note Indenture.
6. NO RECOURSE AGAINST OTHERS. No past, present or future director,
officer, employee, incorporator, stockholder or agent of either Guaranteeing
Subsidiary, as such, shall have any liability for any obligations of the Company
or any Guaranteeing Subsidiary under the Senior Notes, any Senior Subsidiary
Guarantees, the Senior Note Indenture or this Supplemental Senior Note Indenture
or for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder of the Senior Notes by accepting a Senior Note
waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Senior 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 INTERNAL LAW OF THE STATE OF NEW YORK SHALL
GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL SENIOR NOTE INDENTURE BUT
WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT
THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY.
8. COUNTERPARTS The parties may sign any number of copies of this
Supplemental Senior Note 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 SENIOR NOTE TRUSTEE. The Senior Note Trustee shall not be
responsible in any manner whatsoever for or in respect of the validity or
sufficiency of this Supplemental Senior Note Indenture or for or in respect of
the recitals contained herein, all of which recitals are made solely by the
Guaranteeing Subsidiary and the Company.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Senior
Note Indenture to be duly executed and attested, all as of the date first above
written.
Dated:
AFFINITY MINING COMPANY
/s/ T.L. Bethel
- ------------------------------------------
Name: T.L. Bethel
Title: Vice President & Treasurer
ARID OPERATIONS, INC.
/s/ Collon Kennedy
- ------------------------------------------
Name: Collon Kennedy
Title: Vice President, Secretary & General Counsel
BIG SKY COAL COMPANY
/s/ T.L. Bethel
- ------------------------------------------
Name: T.L. Bethel
Title: Treasurer & Asst. Secretary
BLACKROCK FIRST CAPITAL CORPORATION
/s/ T.L. Bethel
- ------------------------------------------
Name: T.L. Bethel
Title: Vice President & Treasurer
BLUEGRASS COAL COMPANY
/s/ John Hill
- ------------------------------------------
Name: John Hill
Title: President
CABALLO COAL COMPANY
/s/ Richard Robinson
- ------------------------------------------
Name: Richard Robinson
Title: Vice President
CHARLES COAL COMPANY
/s/ T.L. Bethel
- ------------------------------------------
Name: T.L. Bethel
Title: Vice President & Treasurer
COAL PROPERTIES CORP.
/s/ J.A. Beck
- ------------------------------------------
Name: J.A. Beck
Title: President
COLONY BAY COAL COMPANY
By: Charles Coal Company
/s/ T.L. Bethel
- ------------------------------------------
Name: T.L. Bethel
Title: Vice President & Treasurer
COOK MOUNTAIN COAL COMPANY
/s/ J.A. Beck
- ------------------------------------------
Name: J.A. Beck
Title: President
COTTONWOOD LAND COMPANY
/s/ S.F. Schaab
- ------------------------------------------
Name: S.F. Schaab
Title: Vice President & Treasurer
EACC CAMPS, INC.
/s/ T.L. Bethel
- ------------------------------------------
Name: T.L. Bethel
Title: Vice President & Treasurer
EASTERN ASSOCIATED COAL CORP
/s/ T.L. Bethel
- ------------------------------------------
Name: T.L. Bethel
Title: Vice President & Treasurer
EASTERN ROYALTY CORP.
/s/ T.L. Bethel
- ------------------------------------------
Name: T.L. Bethel
Title: Vice President & Treasurer
GOLD FIELDS CHILE, S.A
/s/ Collon Kennedy
- ------------------------------------------
Name: Collon Kennedy
Title: Vice President, Secretary & General Counsel
GOLD FIELDS MINING CORPORATION
/s/ Collon Kennedy
- ------------------------------------------
Name: Collon Kennedy
Title: Vice President, Secretary & General Counsel
GOLD FIELDS OPERATING CO.-ORTIZ
/s/ Collon Kennedy
- ------------------------------------------
Name: Collon Kennedy
Title: Vice President, Secretary & General Counsel
GRAND EAGLE MINING, INC.
/s/ John Hill
- ------------------------------------------
Name: John Hill
Title: President
HAYDEN GULCH TERMINAL, INC.
/s/ D.A. Wagner
- ------------------------------------------
Name: D.A. Wagner
Title: President
INDEPENDENCE MATERIAL HANDLING COMPANY
/s/ S. F. Schaab
- ------------------------------------------
Name: S.F. Schaab
Title: Vice President & Treasurer
INTERIOR HOLDINGS CORP.
/s/ S. F. Schaab
- ------------------------------------------
Name: S.F. Schaab
Title: Vice President & Treasurer
JAMES RIVER COAL TERMINAL COMPANY
/s/ R. A. Navarre
- ------------------------------------------
Name: R. A. Navarre
Title: President
JUNIPER COAL COMPANY
/s/ S.F. Schaab
- ------------------------------------------
Name: S.F. Schaab
Title: Vice President & Treasurer
KAYENTA MOBILE HOME PARK, INC.
/s/ T. L. Bethel
- ------------------------------------------
Name: T.L. Bethel
Title: Treasurer & Asst. Secretary
MARTINKA COAL COMPANY
/s/ T. L. Bethel
- ------------------------------------------
Name: T.L. Bethel
Title: Vice President & Treasurer
MIDCO SUPPLY AND EQUIPMENT CORPORATION
/s/ D. C. Hegger
- ------------------------------------------
Name: D.C. Hegger
Title: President
MOUNTAIN VIEW COAL COMPANY
/s/ T. L. Bethel
- ------------------------------------------
Name: T.L. Bethel
Title: Vice President & Treasurer
NORTH PAGE COAL CORP.
/s/ T. L. Bethel
- ------------------------------------------
Name: T.L. Bethel
Title: Vice President & Treasurer
OHIO COUNTY COAL COMPANY
/s/ John Hill
- ------------------------------------------
Name: John Hill
Title: President
PATRIOT COAL COMPANY L.P.
By: Bluegrass Coal Company
/s/ John Hill
- ------------------------------------------
Name: John Hill
Title: President
PEABODY AMERICA, INC.
/s/ D. C. Hegger
- ------------------------------------------
Name: D.C. Hegger
Title: President
PEABODY COALSALES COMPANY
/s/ R.A. Navarre
- ------------------------------------------
Name: R.A. Navarre
Title: President
PEABODY COALTRADE, INC.
/s/ S.F. Schaab
- ------------------------------------------
Name: S.F. Schaab
Title: Vice President & Treasurer
PEABODY COAL COMPANY
/s/ D.A. Wagner
- ------------------------------------------
Name: D.A. Wagner
Title: Vice President
PEABODY DEVELOPMENT COMPANY
/s/ S.F. Schaab
- ------------------------------------------
Name: S.F. Schaab
Title: Vice President & Treasurer
PEABODY ENERGY SOLUTIONS, INC.
/s/ S.F. Schaab
- ------------------------------------------
Name: S.F. Schaab
Title: Vice President & Treasurer
PEABODY HOLDING COMPANY, INC.
/s/ S.F. Schaab
- ------------------------------------------
Name: S.F. Schaab
Title: Vice President & Treasurer
PEABODY NATURAL RESOURCE COMPANY
By: Gold Fields Mining Corp.
/s/ S.F. Schaab
- ------------------------------------------
Name: S.F. Schaab
Title: Vice President & Treasurer
PEABODY TERMINALS, INC.
/s/ S.F. Schaab
- ------------------------------------------
Name: S.F. Schaab
Title: Vice President & Treasurer
PEABODY VENEZUELA COAL CORP.
/s/ S.F. Schaab
- ------------------------------------------
Name: S.F. Schaab
Title: Vice President & Treasurer
PEABODY WESTERN COAL COMPANY
/s/ D.A. Wagner
- ------------------------------------------
Name: D.A. Wagner
Title: President
PINE RIDGE COAL COMPANY
/s/ T.L. Bethel
- ------------------------------------------
Name: T.L. Bethel
Title: Vice President & Treasurer
POWDER RIVER COAL COMPANY
/s/ S.F. Schaab
- ------------------------------------------
Name: S.F. Schaab
Title: Vice President & Treasurer
RIO ESCONDIDO COAL CORP.
/s/ S.F. Schaab
- ------------------------------------------
Name: S.F. Schaab
Title: Vice President & Treasurer
SENECA COAL COMPANY
/s/ D.A. Wagner
- ------------------------------------------
Name: D.A. Wagner
Title: President
SENTRY MINING COMPANY
/s/ S.F. Schaab
- ------------------------------------------
Name: S.F. Schaab
Title: Vice President & Treasurer
SNOWBERRY LAND COMPANY
/s/ S.F. Schaab
- ------------------------------------------
Name: S.F. Schaab
Title: Vice President & Treasurer
STERLING SMOKELESS COAL COMPANY
/s/ T.L. Bethel
- ------------------------------------------
Name: T.L. Bethel
Title: Vice President & Treasurer
THOROUGHBRED, L.L.C.
By: Peabody Holding Company
/s/ Steven F. Schaab
- ------------------------------------------
Name: S. F. Schaab
Title: Vice President & Treasurer
GALLO FINANCE COMPANY
/s/ S.F. Schaab
- ------------------------------------------
Name: S.F. Schaab
Title: Vice President & Treasurer
P&L COAL HOLDINGS CORPORATION
/s/ S.F. Schaab
- ------------------------------------------
Name: S.F. Schaab
Title: Vice President & Treasurer
STATE STREET BANK AND TRUST COMPANY
as Senior Note Trustee
/s/ Philip G. Kane, Jr.
- ------------------------------------------
Name: Philip G. Kane, Jr.
Title: Vice President