THIRD SUPPLEMENTAL SENIOR NOTE INDENTURE
THIRD SUPPLEMENTAL SENIOR NOTE INDENTURE (this "Supplemental Senior Note
Indenture"), dated as of June 30, 1999, among Highland Mining Company, a
Delaware corporation, Peabody Southwestern Coal Company; a Delaware corporation
(together, the "Guaranteeing Subsidiaries"), each 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 Subsidiaries shall execute and deliver to the
Senior Note Trustee a supplemental Senior Note Indenture pursuant to which the
Guaranteeing Subsidiaries shall each 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 Subsidiaries 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. Each of the Guaranteeing Subsidiaries 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 each 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. Each 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 SUBSIDIARIES 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 Subsidiaries 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/ ▇.▇. ▇▇▇▇▇▇
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Name: ▇.▇. ▇▇▇▇▇▇
Title: Vice President & Treasurer
ARID OPERATIONS, INC.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President, Secretary & General Counsel
BIG SKY COAL COMPANY
/s/ ▇.▇. ▇▇▇▇▇▇
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Name: ▇.▇. ▇▇▇▇▇▇
Title: Treasurer & Asst. Secretary
BLACKROCK FIRST CAPITAL CORPORATION
/s/ ▇.▇. ▇▇▇▇▇▇
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Name: ▇.▇. ▇▇▇▇▇▇
Title: Vice President & Treasurer
BLUEGRASS COAL COMPANY
/s/ ▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇
Title: President
CABALLO COAL COMPANY
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇ COAL COMPANY
/s/ ▇.▇. ▇▇▇▇▇▇
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Name: ▇.▇. ▇▇▇▇▇▇
Title: Vice President & Treasurer
COAL PROPERTIES CORP.
/s/ ▇.▇. ▇▇▇▇
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Name: ▇.▇. ▇▇▇▇
Title: President
COLONY BAY COAL COMPANY
By: ▇▇▇▇▇▇▇ Coal Company
/s/ ▇.▇. ▇▇▇▇▇▇
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Name: ▇.▇. ▇▇▇▇▇▇
Title: Vice President & Treasurer
▇▇▇▇ MOUNTAIN COAL COMPANY
/s/ ▇.▇. ▇▇▇▇
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Name: ▇.▇. ▇▇▇▇
Title: President
COTTONWOOD LAND COMPANY
/s/ ▇.▇. ▇▇▇▇▇▇
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Name: ▇.▇. ▇▇▇▇▇▇
Title: Vice President & Treasurer
EACC CAMPS, INC.
/s/ ▇.▇. ▇▇▇▇▇▇
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Name: ▇.▇. ▇▇▇▇▇▇
Title: Vice President & Treasurer
EASTERN ASSOCIATED COAL CORP
/s/ ▇.▇. ▇▇▇▇▇▇
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Name: ▇.▇. ▇▇▇▇▇▇
Title: Vice President & Treasurer
EASTERN ROYALTY CORP.
/s/ ▇.▇. ▇▇▇▇▇▇
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Name: ▇.▇. ▇▇▇▇▇▇
Title: Vice President & Treasurer
GOLD FIELDS CHILE, S.A
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President, Secretary & General Counsel
GOLD FIELDS MINING CORPORATION
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President, Secretary & General Counsel
GOLD FIELDS OPERATING CO.-▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President, Secretary & General Counsel
GRAND EAGLE MINING, INC.
/s/ ▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇
Title: President
HAYDEN GULCH TERMINAL, INC.
/s/ ▇.▇. ▇▇▇▇▇▇
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Name: ▇.▇. ▇▇▇▇▇▇
Title: President
INDEPENDENCE MATERIAL HANDLING COMPANY
/s/ ▇. ▇. ▇▇▇▇▇▇
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Name: ▇.▇. ▇▇▇▇▇▇
Title: Vice President & Treasurer
INTERIOR HOLDINGS CORP.
/s/ ▇. ▇. ▇▇▇▇▇▇
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Name: ▇.▇. ▇▇▇▇▇▇
Title: Vice President & Treasurer
▇▇▇▇▇ RIVER COAL TERMINAL COMPANY
/s/ ▇. ▇. ▇▇▇▇▇▇▇
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Name: ▇. ▇. ▇▇▇▇▇▇▇
Title: President
JUNIPER COAL COMPANY
/s/ ▇.▇. ▇▇▇▇▇▇
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Name: ▇.▇. ▇▇▇▇▇▇
Title: Vice President & Treasurer
KAYENTA MOBILE HOME PARK, INC.
/s/ ▇. ▇. ▇▇▇▇▇▇
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Name: ▇.▇. ▇▇▇▇▇▇
Title: Treasurer & Asst. Secretary
▇▇▇▇▇▇▇▇ COAL COMPANY
/s/ ▇. ▇. ▇▇▇▇▇▇
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Name: ▇.▇. ▇▇▇▇▇▇
Title: Vice President & Treasurer
MIDCO SUPPLY AND EQUIPMENT CORPORATION
/s/ ▇. ▇. ▇▇▇▇▇▇
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Name: ▇.▇. ▇▇▇▇▇▇
Title: President
MOUNTAIN VIEW COAL COMPANY
/s/ ▇. ▇. ▇▇▇▇▇▇
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Name: ▇.▇. ▇▇▇▇▇▇
Title: Vice President & Treasurer
NORTH PAGE COAL CORP.
/s/ ▇. ▇. ▇▇▇▇▇▇
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Name: ▇.▇. ▇▇▇▇▇▇
Title: Vice President & Treasurer
OHIO COUNTY COAL COMPANY
/s/ ▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇
Title: President
PATRIOT COAL COMPANY L.P.
By: Bluegrass Coal Company
/s/ ▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇
Title: President
PEABODY AMERICA, INC.
/s/ ▇. ▇. ▇▇▇▇▇▇
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Name: ▇.▇. ▇▇▇▇▇▇
Title: President
PEABODY COALSALES COMPANY
/s/ ▇.▇. ▇▇▇▇▇▇▇
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Name: ▇.▇. ▇▇▇▇▇▇▇
Title: President
PEABODY COALTRADE, INC.
/s/ ▇.▇. ▇▇▇▇▇▇
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Name: ▇.▇. ▇▇▇▇▇▇
Title: Vice President & Treasurer
PEABODY COAL COMPANY
/s/ ▇.▇. ▇▇▇▇▇▇
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Name: ▇.▇. ▇▇▇▇▇▇
Title: Vice President
PEABODY DEVELOPMENT COMPANY
/s/ ▇.▇. ▇▇▇▇▇▇
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Name: ▇.▇. ▇▇▇▇▇▇
Title: Vice President & Treasurer
PEABODY ENERGY SOLUTIONS, INC.
/s/ ▇.▇. ▇▇▇▇▇▇
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Name: ▇.▇. ▇▇▇▇▇▇
Title: Vice President & Treasurer
PEABODY HOLDING COMPANY, INC.
/s/ ▇.▇. ▇▇▇▇▇▇
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Name: ▇.▇. ▇▇▇▇▇▇
Title: Vice President & Treasurer
PEABODY NATURAL RESOURCE COMPANY
By: Gold Fields Mining Corp.
/s/ ▇.▇. ▇▇▇▇▇▇
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Name: ▇.▇. ▇▇▇▇▇▇
Title: Vice President & Treasurer
PEABODY TERMINALS, INC.
/s/ ▇.▇. ▇▇▇▇▇▇
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Name: ▇.▇. ▇▇▇▇▇▇
Title: Vice President & Treasurer
PEABODY VENEZUELA COAL CORP.
/s/ ▇.▇. ▇▇▇▇▇▇
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Name: ▇.▇. ▇▇▇▇▇▇
Title: Vice President & Treasurer
PEABODY WESTERN COAL COMPANY
/s/ ▇.▇. ▇▇▇▇▇▇
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Name: ▇.▇. ▇▇▇▇▇▇
Title: President
PINE RIDGE COAL COMPANY
/s/ ▇.▇. ▇▇▇▇▇▇
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Name: ▇.▇. ▇▇▇▇▇▇
Title: Vice President & Treasurer
POWDER RIVER COAL COMPANY
/s/ ▇.▇. ▇▇▇▇▇▇
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Name: ▇.▇. ▇▇▇▇▇▇
Title: Vice President & Treasurer
RIO ESCONDIDO COAL CORP.
/s/ ▇.▇. ▇▇▇▇▇▇
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Name: ▇.▇. ▇▇▇▇▇▇
Title: Vice President & Treasurer
SENECA COAL COMPANY
/s/ ▇.▇. ▇▇▇▇▇▇
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Name: ▇.▇. ▇▇▇▇▇▇
Title: President
SENTRY MINING COMPANY
/s/ ▇.▇. ▇▇▇▇▇▇
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Name: ▇.▇. ▇▇▇▇▇▇
Title: Vice President & Treasurer
SNOWBERRY LAND COMPANY
/s/ ▇.▇. ▇▇▇▇▇▇
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Name: ▇.▇. ▇▇▇▇▇▇
Title: Vice President & Treasurer
STERLING SMOKELESS COAL COMPANY
/s/ ▇.▇. ▇▇▇▇▇▇
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Name: ▇.▇. ▇▇▇▇▇▇
Title: Vice President & Treasurer
THOROUGHBRED, L.L.C.
By: Peabody Holding Company
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇. ▇. ▇▇▇▇▇▇
Title: Vice President & Treasurer
HIGHLAND MINING COMPANY
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
PEABODY SOUTHWESTERN COAL COMPANY
/s/ ▇.▇. ▇▇▇▇▇▇
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Name: ▇.▇. ▇▇▇▇▇▇
Title: Vice President & Treasurer
P&L COAL HOLDINGS CORPORATION
/s/ ▇.▇. ▇▇▇▇▇▇
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Name: ▇.▇. ▇▇▇▇▇▇
Title: Vice President & Treasurer
STATE STREET BANK AND TRUST COMPANY
as Senior Note Trustee
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Title: Vice President