EIGHTEENTH SUPPLEMENTAL
INDENTURE
(6 7/8% Notes due 2013)
Eighteenth
Supplemental Indenture (this “ Supplemental Indenture
”), dated as of March 13, 2009, by the entities listed on
Schedule I (the “ Guaranteeing
Subsidiaries ”), being subsidiaries 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
”).
WHEREAS,
the Company has 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:
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First Supplemental Indenture, dated
as of May 7, 2003;
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Second Supplemental Indenture, dated
as of September 30, 2003;
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Third Supplemental Indenture, dated
as of February 24, 2004;
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Fourth Supplemental Indenture, dated
as of April 22, 2004;
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Fifth Supplemental Indenture, dated
as of October 18, 2004;
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Sixth Supplemental Indenture, dated
as of January 20, 2005;
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Seventh Supplemental Indenture,
dated as of September 30, 2005;
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Eighth Supplemental Indenture, dated
as of January 20, 2006;
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Ninth Supplemental Indenture, dated
as of June 13, 2006;
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Tenth Supplemental Indenture, dated
as of June 30, 2006;
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Eleventh Supplemental Indenture,
dated as of September 29, 2006;
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Twelfth Supplemental Indenture,
dated as of November 10, 2006;
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Thirteenth Supplemental Indenture,
dated as of January 31, 2007;
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Fourteenth Supplemental Indenture,
dated as of June 14, 2007;
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Fifteenth Supplemental Indenture,
dated as of November 14, 2007;
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Sixteenth Supplemental Indenture,
dated as of March 31, 2008;
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Seventeenth Supplemental Indenture,
dated as of November 5, 2008; and
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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 agrees as
follows:
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(a)
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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:
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(i)
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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
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(ii)
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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.
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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.
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(b)
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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.
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(c)
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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.
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(d)
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This Subsidiary Guarantee shall not
be discharged except by complete performance of the obligations
contained in the Notes and the Indenture.
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(e)
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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.
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(f)
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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)
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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
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prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and
(y) in the event of any declaration
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