SECOND SUPPLEMENTAL SENIOR SUBORDINATED NOTE INDENTURE
SECOND SUPPLEMENTAL SENIOR SUBORDINATED NOTE INDENTURE (this "Supplemental
Senior Subordinated Note Indenture"), dated as of December 31, 1998, among Gallo
Finance Company, a Delaware corporation (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 Subordinated
Note Guarantors (as defined in the Senior Subordinated Note Indenture referred
to herein) and State Street Bank and Trust Company, as Senior Subordinated Note
Trustee under the Senior Subordinated Note Indenture referred to below (the
"Senior Subordinated Note Trustee").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the Senior
Subordinated Note Trustee a Senior Subordinated Note Indenture (the "Senior
Subordinated Note Indenture"), dated as of May 18, 1998 providing for the
issuance of an aggregate principal amount of up to $650.0 million of 9-5/8%
Senior Subordinated Notes due 2008 (the "Senior Subordinated Notes");
WHEREAS, the Senior Subordinated Note Indenture provides that under certain
circumstances the Guaranteeing Subsidiary shall execute and deliver to the
Senior Subordinated Note Trustee a Supplemental Senior Subordinated Note
Indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally
guarantee all of the Company's Obligations under the Senior Subordinated Notes
and the Senior Subordinated Note Indenture on the terms and conditions set forth
herein (the "Subordinated Subsidiary Guarantee"); and
WHEREAS, pursuant to Section 9.01 of the Senior Subordinated Note
Indenture, the Senior Subordinated Note Trustee is authorized to execute and
deliver this Supplemental Senior Subordinated 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 Subordinated Note Trustee mutually
covenant and agree for the equal and ratable benefit of the Holders of the
Senior Subordinated Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Senior Subordinated Note
Indenture.
2. AGREEMENT TO GUARANTEE. The Guaranteeing Subsidiary hereby agrees
as follows:
(a) Along with all Senior Subordinated Note Guarantors named in
the Senior Subordinated Note Indenture, to jointly and severally
Guarantee to each Holder of a Senior Subordinated Note authenticated
and delivered by the Senior Subordinated Note Trustee and to the
Senior Subordinated Note Trustee and its successors and assigns,
irrespective of the validity and enforceability of the Senior
Subordinated Note Indenture, the Senior Subordinated Notes or the
obligations of the Company hereunder or thereunder, that:
(i) the principal of and interest on the Senior Subordinated
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
Subordinated Notes, if any, if lawful, and all other obligations
of the Company to the Holders or the Senior Subordinated 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 Subordinated 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
Subordinated 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 Subordinated Notes
or the Senior Subordinated Note Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Senior
Subordinated 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 Subordinated 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 Subordinated Subsidiary Guarantee shall not be discharged
except by complete performance of the obligations contained in the Senior
Subordinated Notes and the Senior Subordinated Note Indenture.
(e) If any Holder or the Senior Subordinated Note Trustee is required
by any court or otherwise to return to the Company, the Senior Subordinated
Note Guarantors, or any custodian, Senior Subordinated Note Trustee,
liquidator or other similar official acting in relation to either the
Company or the Senior Subordinated Note Guarantors, any amount paid by
either to the Senior Subordinated Note Trustee or such Holder, this
Subordinated Subsidiary Guarantee, to the extent theretofore discharged,
shall be reinstated in full force and effect.
(f) Neither of the Guaranteeing Subsidiary shall 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 Subordinated Note Guarantors, on the one
hand, and the Holders and the Senior Subordinated 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 Subordinated Note
Indenture for the purposes of this Subordinated 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 Subordinated Note Indenture, such
obligations (whether or not due and payable) shall forthwith become due and
payable by the Senior Subordinated Note Guarantors for the purpose of this
Subordinated Subsidiary Guarantee.
(h) The Senior Subordinated Note Guarantors shall have the right to
seek contribution from any non-paying Senior Subordinated Note Guarantor so
long as the exercise of such right does not impair the rights of the
Holders under the Subordinated Subsidiary Guarantee.
(i) Pursuant to Section 11.03 of the Senior Subordinated Note
Indenture, the obligations of the Guaranteeing Subsidiary hereunder and
under Article 11 of the Senior Subordinated 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 Subordinated Note
Guarantor in respect of the obligations of such other Senior Subordinated
Note Guarantor under Article 11 of the Senior Subordinated Note Indenture,
result in the obligations of such Senior Subordinated Note Guarantor under
its Subordinated Subsidiary Guarantee not constituting a fraudulent
transfer or conveyance.
3. EXECUTION AND DELIVERY. The Guaranteeing Subsidiary agrees that the
Subordinated Subsidiary Guarantees shall remain in full force and effect
notwithstanding any failure to endorse on each Senior Subordinated Note a
notation of such Subordinated 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 Subordinated Note Guarantor
is the surviving Person) another corporation, Person or entity whether or
not affiliated with such Senior Subordinated Note Guarantor unless:
(i) subject to Section 11.05 of the Senior Subordinated Note
Indenture, the Person formed by or surviving any such consolidation or
merger (if other than a Senior Subordinated Note Guarantor or the
Company) unconditionally assumes all the obligations of such Senior
Subordinated Note Guarantor, pursuant to a supplemental Senior
Subordinated Note Indenture in form and substance reasonably
satisfactory to the Senior Subordinated Note Trustee, under the Senior
Subordinated Notes, the Senior Subordinated Note Indenture and the
Subordinated 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
Subordinated Note Indenture, executed and delivered to the Senior
Subordinated Note Trustee and satisfactory in form to the Senior
Subordinated Note Trustee, of the Subordinated Subsidiary Guarantee
endorsed upon the Senior Subordinated Notes and the due and punctual
performance of all of the covenants and conditions of the Senior
Subordinated Note Indenture to be performed by the Senior Subordinated Note
Guarantor, such successor corporation shall succeed to and be substituted
for the Senior Subordinated Note Guarantor with the same effect as if it
had been named herein as a Senior Subordinated Note Guarantor. Such
successor corporation thereupon may cause to be signed any or all of the
Subordinated Subsidiary Guarantees to be endorsed upon all of the Senior
Subordinated Notes issuable hereunder which theretofore shall not have been
signed by the Company and delivered to the Senior Subordinated Note
Trustee. All the Subordinated Subsidiary Guarantees so issued shall in all
respects have the same legal rank and benefit under the Senior Subordinated
Note Indenture as the Subordinated Subsidiary Guarantees theretofore and
thereafter issued in accordance with the terms of the Senior Subordinated
Note Indenture as though all of such Subordinated 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 Subordinated
Note Indenture, and notwithstanding clauses (a) and (b) above, nothing
contained in the Senior Subordinated Note Indenture or in any of the Senior
Subordinated Notes shall prevent any consolidation or merger of a Senior
Subordinated Note Guarantor with or into the Company or another Senior
Subordinated Note Guarantor, or shall prevent any sale or conveyance of the
property of a Senior Subordinated Note Guarantor as an entirety or
substantially as an entirety to the Company or another Senior Subordinated
Note Guarantor.
5. RELEASES.
(a) In the event of a sale or other disposition of all of the assets
of any Senior Subordinated Note Guarantor, by way of merger, consolidation
or otherwise, or a sale or other disposition of all to the capital stock of
any Senior Subordinated Note Guarantor, then such Senior Subordinated 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
Subordinated 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 Subordinated Note Guarantor) will be released and
relieved of any obligations under its Subordinated Subsidiary Guarantee;
provided that the Net Proceeds of such sale or other disposition are
applied in accordance with the applicable provisions of the Senior
Subordinated Note Indenture, including without limitation Section 4.10 of
the Senior Subordinated Note Indenture. Upon delivery by the Company to the
Senior Subordinated 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 Subordinated
Note Indenture, including without limitation Section 4.10 of the Senior
Subordinated Note Indenture, the Senior Subordinated Note Trustee shall
execute any documents reasonably required in order to evidence the release
of any Senior Subordinated Note Guarantor from its obligations under its
Subordinated Subsidiary Guarantee.
(b) Any Senior Subordinated Note Guarantor not released from its
obligations under its Subordinated Subsidiary Guarantee shall remain liable
for the full amount of principal of and interest on the Senior Subordinated
Notes and for the other obligations of any Senior Subordinated Note
Guarantor under the Senior Subordinated Note Indenture as provided in
Article 11 of the Senior Subordinated 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 Subordinated Notes, any
Subordinated Subsidiary Guarantees, the Senior Subordinated Note Indenture or
this Supplemental Senior Subordinated 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 Subordinated Notes by accepting a Senior Subordinated Note waives
and releases all such liability. The waiver and release are part of the
consideration for issuance of the Senior Subordinated 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 SUBORDINATED 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 Subordinated 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 SUBORDINATED NOTE TRUSTEE. The Senior Subordinated Note
Trustee shall not be responsible in any manner whatsoever for or in respect of
the validity or sufficiency of this Supplemental Senior Subordinated 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
Subordinated 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
DARIUS GOLD MINE, INC.
/s/ Collon Kennedy
- ------------------------------------------
Name: Collon Kennedy
Title: Vice President, Secretary & General Counsel
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
GALLO FINANCE COMPANY
/s/ D.A. Wagner
- ------------------------------------------
Name: D.A. Wagner
Title: President
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: David 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/ Steven F. Schaab
- ------------------------------------------
Name: Steven 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
GALLO FINANCE COMPANY
/s/ Joseph C. Klingl
- ------------------------------------------
Name: Joseph C. Klingl
Title: Vice President
PEABODY SOUTHWESTERN COAL 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 Subordinated Note Trustee
/s/ Philip G. Kane, Jr.
- ------------------------------------------
Name: Philip G. Kane, Jr.
Title: Vice President