THIRTY-SECOND SUPPLEMENTAL
INDENTURE
(7 7/8% Senior Notes due 2026)
Thirty-second
Supplemental Indenture (this “ Supplemental Indenture
”), dated as of March 13, 2009, by the entities listed
on Schedule I 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 U.S. Bank National Association,
as Trustee under the Indenture referred to below (the “
Trustee ”).
WHEREAS,
the Company has executed and delivered to the Trustee the Eleventh
Supplemental Indenture dated as of October 12, 2006 to the
Indenture dated as of March 19, 2004, (the “ Base
Indenture , ” and, together with the
Eleventh Supplemental Indenture, the “ Indenture
”) providing for the issuance of an unlimited amount of 7
7/8% Senior Notes due 2026 (the “ Notes ”), as
supplemented by:
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the
Fourteenth Supplemental Indenture dated as of November 10,
2006;
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the
Seventeenth Supplemental Indenture dated as of January 31,
2007;
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the
Twentieth Supplemental Indenture dated as of June 14,
2007;
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the
Twenty-third Supplemental Indenture dated as of November 14,
2007;
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the
Twenty-sixth Supplemental Indenture dated as of March 31,
2008;
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the
Twenty-ninth Supplemental Indenture dated as of November 5,
2008; and
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WHEREAS,
the Indenture provides that under certain circumstances each of the
Guaranteeing Subsidiaries shall execute and deliver to the Trustee
a supplemental Indenture pursuant to which each of 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, each of 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 each of the 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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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
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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. 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.
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(b)
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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.
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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 Eleventh 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 Eleventh 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.
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(h)
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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)
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Pursuant to Section 9.04 of the
Eleventh Supplemental Indenture, after giving effect to any maximum
amount and any other contingent and fixed liabilities that are
relevant u
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