exv10w1



 





Exhibit
10.1



EXECUTION COPY



TRANSITION SERVICES AGREEMENT




by and among




PEABODY
ENERGY CORPORATION


and


PATRIOT COAL CORPORATION




Dated as of October 22, 2007










 



 




TRANSITION SERVICES AGREEMENT




	 	 	 	 	 	 	 	 	 
	ARTICLE I DEFINITIONS	 	 	1	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 1.01.
	 	Definitions
	 	 	1	 
	 

	 	Section 1.02.
	 	Currency
	 	 	4	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE II TRANSITION SERVICE SCHEDULES	 	 	4	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE III SERVICES	 	 	4	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 3.01.
	 	Services Generally
	 	 	4	 
	 

	 	Section 3.02.
	 	Service Levels
	 	 	4	 
	 

	 	Section 3.03.
	 	Impracticability
	 	 	5	 
	 

	 	Section 3.04.
	 	Additional Resources
	 	 	5	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE IV OPERATING COMMITTEE	 	 	5	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 4.01.
	 	Organization
	 	 	5	 
	 

	 	Section 4.02.
	 	Decision Making
	 	 	5	 
	 

	 	Section 4.03.
	 	Meetings
	 	 	5	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE V TERM	 	 	5	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE VI COMPENSATION	 	 	6	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 6.01.
	 	Charges for Services
	 	 	6	 
	 

	 	Section 6.02.
	 	Payment Terms
	 	 	6	 
	 

	 	Section 6.03.
	 	Taxes
	 	 	7	 
	 

	 	Section 6.04.
	 	Performance under Ancillary Agreements
	 	 	7	 
	 

	 	Section 6.05.
	 	Error Correction; True up; Accounting
	 	 	7	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE VII GENERAL OBLIGATIONS	 	 	7	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 7.01.
	 	Performance Metrics
	 	 	7	 
	 

	 	Section 7.02.
	 	Disclaimer of Warranties
	 	 	8	 
	 

	 	Section 7.03.
	 	Transitional Nature of Services; Changes
	 	 	8	 
	 

	 	Section 7.04.
	 	Responsibilities for Errors; Changes
	 	 	8	 
	 

	 	Section 7.05.
	 	Cooperation and Consents
	 	 	8	 
	 

	 	Section 7.06.
	 	Alternatives
	 	 	9	 
	 

	 	Section 7.07.
	 	Personnel
	 	 	9	 
	 

	 	Section 7.08.
	 	Insurance
	 	 	10	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE VIII TERMINATION	 	 	10	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 8.01.
	 	Termination
	 	 	10	 
	 

	 	Section 8.02.
	 	Survival
	 	 	11	 
	 

	 	Section 8.03.
	 	Payment
	 	 	11	 
	 

	 	Section 8.04.
	 	User ID; Passwords
	 	 	11	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE IX RELATIONSHIP BETWEEN THE PARTIES	 	 	12	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE X SUBCONTRACTORS	 	 	12	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 











 



2


	 	 	 	 	 	 	 	 	 
	 

	 	Section 10.01.
	 	Subcontractors
	 	 	12	 
	 

	 	Section 10.02.
	 	Assignment
	 	 	12	 
	 
	ARTICLE XI INTELLECTUAL PROPERTY	 	 	12	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 11.01.
	 	Allocation of Rights by Ancillary Agreements
	 	 	12	 
	 

	 	Section 11.02.
	 	Existing Ownership Rights Unaffected
	 	 	13	 
	 

	 	Section 11.03.
	 	Third Party Software
	 	 	13	 
	 

	 	Section 11.04.
	 	Termination of Licenses
	 	 	13	 
	 
	ARTICLE XII NO OBLIGATION	 	 	13	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE XIII CONFIDENTIALITY	 	 	13	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 13.01.
	 	Confidentiality
	 	 	13	 
	 

	 	Section 13.02.
	 	PCC Confidential Information
	 	 	14	 
	 

	 	Section 13.03.
	 	Permitted Purpose
	 	 	14	 
	 

	 	Section 13.04.
	 	Disclosure
	 	 	14	 
	 

	 	Section 13.05.
	 	Custody
	 	 	14	 
	 

	 	Section 13.06.
	 	Expiration of Confidentiality Provisions
	 	 	14	 
	 
	ARTICLE XIV LIMITATION OF LIABILITY AND INDEMNIFICATION	 	 	15	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 14.01.
	 	Indemnification
	 	 	15	 
	 

	 	Section 14.02.
	 	Limitation of Liability
	 	 	16	 
	 

	 	Section 14.03.
	 	Exclusions
	 	 	16	 
	 

	 	Section 14.04.
	 	Provisions Applicable with respect
to Indemnification Obligations
	 	 	16	 
	 

	 	Section 14.05.
	 	Survival
	 	 	17	 
	 
	ARTICLE XV DISPUTE RESOLUTION	 	 	17	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE XVI ASSIGNMENT	 	 	17	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 16.01.
	 	Prohibition of Assignment
	 	 	17	 
	 

	 	Section 16.02.
	 	Assignment to PEC Group Company
	 	 	17	 
	 
	ARTICLE XVII MISCELLANEOUS	 	 	17	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 17.01.
	 	Notices
	 	 	17	 
	 

	 	Section 17.02.
	 	Governing Law
	 	 	17	 
	 

	 	Section 17.03.
	 	Judgment Currency
	 	 	17	 
	 

	 	Section 17.04.
	 	Entire Agreement
	 	 	17	 
	 

	 	Section 17.05.
	 	Conflicts
	 	 	18	 
	 

	 	Section 17.06.
	 	Force Majeure
	 	 	18	 
	 

	 	Section 17.07.
	 	Amendment and Waiver
	 	 	18	 
	 

	 	Section 17.08.
	 	Further Assurances
	 	 	18	 
	 

	 	Section 17.09.
	 	Severability
	 	 	19	 
	 

	 	Section 17.10.
	 	Counterparts
	 	 	19	 












 



 


TRANSITION SERVICES AGREEMENT




     TRANSITION SERVICES AGREEMENT (this “Agreement”), dated as of October 22, 2007, by and between
Peabody Energy Corporation, a Delaware corporation (“PEC”) and Patriot Coal Corporation, a Delaware
corporation (“PCC” and together with PEC, the “Parties”, and each individually, a “Party”).
Capitalized terms used but not defined herein shall have the meaning ascribed to them in the
Separation Agreement (as defined below).



RECITALS




     WHEREAS PEC and PCC have entered into a Separation Agreement, Plan of Reorganization and
Distribution dated October 22, 2007 pursuant to which the Parties set out the terms and conditions
relating to the separation of the Eastern Business (such that the Eastern Business is to be held,
as at the Effective Time, directly or indirectly, by PCC (such agreement, as amended, restated or
modified from time to time, the “Separation Agreement”).



     WHEREAS in connection therewith, PCC desires that PEC and other members of the PEC Group, as
applicable, provide PCC and other members of the PCC Group, as applicable, with certain
transitional services with respect to the operation of the PCC Group following the Effective Date,
subject to the terms and conditions of this Agreement.



     NOW, THEREFORE, in consideration of the foregoing premises and the mutual agreements and
covenants contained in this Agreement and other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as follows:



ARTICLE I

DEFINITIONS




          Section 1.01. Definitions. For the purposes of this Agreement, the following words and
expressions and variations thereof, unless a clearly inconsistent meaning is required under the
context, shall have the meanings specified or referred to in this Section 1.01:




     “Affiliate” of any Person means any other Person that, directly or indirectly, controls, is
controlled by, or is under common control with such first Person as of the date on which or at any
time during the period for when such determination is being made. For purposes of this definition,
“Control” means the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the ownership of voting
securities or other interests, by contract or otherwise, and the terms “Controlling” and
“Controlled” have meanings correlative to the foregoing.



     “Agreement” has the meaning set forth in Article II.



     “Applicable Law” means any applicable law, statute, rule or regulation of any Governmental
Authority or any outstanding order, judgment, injunction, ruling or decree by any Governmental
Authority.









 



2


     “Business Concern” means any corporation, company, limited liability company, partnership,
joint venture, trust, unincorporated association or any other form of association.



     “Business Day” means any day excluding (i) Saturday, Sunday and any other day which, in St.
Louis, Missouri, is a legal holiday or (ii) a day on which banks are authorized by Applicable Law
to close in St. Louis, Missouri.



     “Chief Representative” has the meaning set forth in Section 7.07(c).



     “Commercially Reasonable Efforts” means the efforts that a reasonable and prudent Person
desirous of achieving a business result would use in similar circumstances to ensure that such
result is achieved as expeditiously as possible in the context of commercial relations of the type
envisaged by this Agreement; provided, however, that an obligation to use Commercially Reasonable
Efforts under this Agreement does not require the Person subject to that obligation to assume any
material obligations or pay any material amounts to a Third Party.



     “Consent” means any approval, consent, ratification, waiver or other authorization.



     “Contract” means any contract, agreement, lease, license, commitment, consensual obligation,
promise or undertaking (whether written or oral and whether express or implied) that is legally
binding on any Person or any part of its property under Applicable Law.



     “Dollars” or “$” means the lawful currency of the United States of America.



     “Event of Default” has the meaning set forth in Section 8.01.



     “Expiration Date” has the meaning set forth in Article V.



     “Fair Market Value” means, in relation to the pricing of services under this Agreement, terms
that would be agreed between non-affiliated third parties for comparable services on a comparable
scale, determined in the reasonable judgment of PEC.



     “Force Majeure Event” has the meaning set forth in Section 17.07.



     “Governmental Authority” means any court, arbitration panel, governmental or regulatory
authority, agency, stock exchange, commission or body.



     “Governmental Authorization” means any Consent, license, certificate, franchise, registration
or permit issued, granted, given or otherwise made available by, or under the authority of, any
Governmental Authority or pursuant to any Applicable Law.



     “Group” means PEC Group or PCC Group, as the context requires.



     “Impracticability” has the meaning set forth in Section 3.03.



     “Operating Committee” has the meaning set forth in Section 4.01.



     “PCC Confidential Information” has the meaning set forth in Section 13.02.









 



3


     “PCC Group” means PCC and its Subsidiaries from time to time after the Effective Time.



     “PCC Indemnified Parties” has the meaning set forth in Section 14.01.



     “PEC Group” means PEC and its Subsidiaries from time to time after the Effective Time.



     “PEC Group Company” means any Person forming part of the PEC Group.



     “PEC Indemnified Parties” has the meaning set forth in Section 14.01.



     “Permitted Purpose” has the meaning set forth in Section 13.03.



     “Person” means any individual, Business Concern or Governmental Authority.



     “Prime Rate” means the rate of interest announced by Bank of America, Inc. from time to time
as its “prime rate,” “prime lending rate,” “base rate” or similar reference rate. In the event the
Prime Rate is discontinued as a standard, the holder hereof shall designate a comparable reference
rate as a substitute therefor. For purposes hereof, the Prime Rate in effect at the close of
business on each business day of Bank of America, Inc. shall be the Prime Rate for that day and any
immediately succeeding non-business day or days.



     “Results” has the meaning set forth in Section 11.02.



     “Sales Taxes” means any sales, use, consumption, goods and services, value added or similar
tax, duty or charge imposed pursuant to Applicable Law.



     “Separation Agreement” has the meaning set out in the Preamble to this Agreement.



     “Service(s)” has the meaning set forth in Section 3.01.



     “Service Manager” has the meaning set forth in Section 7.07(c).



     “Service Provider” means PEC or a member of PEC Group when it is providing a Service to PCC or
a member of PCC Group hereunder in accordance with a Transition Service Schedule.



     “Service Recipient” means PCC or a member of PCC Group when it is receiving a Service from PEC
or a member of PEC Group hereunder in accordance with a Transition Service Schedule.



     “Subcontractor” has the meaning set forth in Section 10.01.



     “Subsidiary” of any Person means any corporation, partnership, limited liability entity, joint
venture or other organization, whether incorporated or unincorporated, of which of a majority of
the total voting power of capital stock or other interests entitled (without the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by such Person.



     “Term” has the meaning set forth in Article V.









 



4


     “Third Party” means a Person that is not a Party to this Agreement, other than a member of the
PEC Group or a member of the PCC Group or an Affiliate of either Group.



     “Transition Service Schedule” has the meaning set forth in Article II.



          Section 1.02. Currency. Except as otherwise specified in a Transition Service
Schedule, all references to currency herein are to lawful money of the United States of America.




ARTICLE II

TRANSITION SERVICE SCHEDULES




          This Agreement will govern individual transitional Services as requested by PCC or any other
member of PCC Group, and provided by PEC or any other member of PEC Group, the details of which are
set forth in the Transition Service Schedules attached to and forming part of this Agreement. Each
Service shall be covered by this Agreement upon execution of a transition service schedule in the
form attached hereto (each transition service schedule, a “Transition Service Schedule”).




          For each Service, the Parties shall set forth in a Transition Service Schedule substantially
in the form of Schedule 1 hereto, among other things, (i) the time period during which the
Service will be provided if different from the Term of this Agreement; (ii) a summary of the
Service to be provided; and (iii) the method for determining the charge, if any, for the Service
and any other terms applicable thereto. Obligations regarding a Transition Service Schedule shall
be effective upon the later of the Effective Date of this Agreement or the date of execution of the
applicable Transition Service Schedule. This Agreement and all the Transition Service Schedules
shall be defined as the “Agreement” and incorporated herein wherever reference to it is made.




ARTICLE III

SERVICES




          Section 3.01. Services Generally. Except as otherwise provided herein, for the Term
hereof, PEC and other members of the PEC Group shall provide to PCC and the other members of PCC
Group, and shall cause the other applicable members of PEC Group to provide or cause to be provided
to PCC and the other members of PCC Group, the Services described in the Transition Service
Schedule(s) attached hereto identified on such Schedules as Services to be provided by members of
the PEC Group. The Service(s) described on a single Transition Service Schedule shall be referred
to herein as a “Service”. Collectively, the services described on all the Transition Service
Schedules shall be referred to herein as the “Services”. PEC and PCC shall cause the members of
their respective Groups to, if applicable, comply with the terms and conditions set forth in this
Agreement or in the Transition Services Schedules.




          Section 3.02. Service Levels. Except as otherwise provided in a Transition Service Schedule for a specific service: (i)
the Service Provider shall provide the Services only to the extent such Services are being provided
by PEC or any other member of the PEC Group immediately prior to the Effective Date and at a level
of service substantially similar to that provided by PEC or the applicable member of the PEC Group
immediately prior to the Effective Date; and (ii) the Services will be available only for purposes
of conducting the business of the









 



5



Service Recipient substantially in the manner it was conducted
prior to the Effective Time; provided, however, that nothing in this Agreement will require a Party
to favor the other Party over its other business operations. Except as otherwise provided in a
Transition Service Schedule in respect of a specific Service, PCC will not be entitled to any new
service.



          Section 3.03. Impracticability. A Service Provider shall not be required to provide
any Service to the extent the performance of such Service becomes impracticable as a result of a
cause or causes outside the reasonable control of the Service Provider, including unfeasible
technological requirements, or to the extent the performance of such Services would require the
Service Provider to violate any Applicable Law, or would result in the breach of any license,
Governmental Authorization or Contract (an “Impracticability”).




          Section 3.04. Additional Resources. In accordance with Section 7.07 below and except
as specifically provided in a Transition Service Schedule for a specific Service, in providing the
Services, a Service Provider shall not be obligated to: (i) hire any additional employees; (ii)
maintain the employment of any specific employee; (iii) purchase, lease or license any additional
facilities, equipment or software; or (iv) pay any costs related to the transfer or conversion of
the Service Recipient’s data to the Service Provider or any alternate supplier of Services.




ARTICLE IV

OPERATING COMMITTEE




          Section 4.01. Organization. The Parties shall create an operating committee (the
“Operating Committee”) and shall each appoint one (1) employee to the Operating Committee for the
Term. The Operating Committee will oversee the implementation and application of this Agreement and
shall attempt to resolve any dispute between the Parties. Each of the Parties shall have the right
to change its Operating Committee member at any time with employees of comparable knowledge,
expertise and decision-making authority.




          Section 4.02. Decision Making. All Operating Committee decisions shall be taken
unanimously. If the Operating Committee fails to make a decision, resolve a dispute, agree upon any
necessary action, or if a Party so requests, in the event of a material breach of this Agreement, a
senior officer of PEC and a senior officer of PCC, neither of whom shall have any direct oversight
or responsibility for
the subject matter in dispute, shall attempt within a period of fourteen (14) days to
conclusively resolve any such unresolved issue.




          Section 4.03. Meetings. During the Term, the Operating Committee members shall meet,
in person or via teleconference, at least once in each week, or less frequently if agreed by the
members of the Operating Committee. In addition, the Operating Committee shall meet as often as
necessary in order to promptly resolve any disputes submitted to it by any representative of either
Party.




ARTICLE V

TERM




          The term of this Agreement shall commence on the Effective Date and end six (6) months
following the Effective Date, unless earlier terminated under Article VIII or extended as









 



6



hereinafter provided (the “Term”). PCC shall have the right to extend the term of the agreement
for a renewal term of three months upon written notice to PEC no later than thirty (30) days prior
to the expiration of the initial term (the last day of the initial term or renewal term, as
applicable, the “Expiration Date”). Under certain circumstances and for certain Services, as
specified in the applicable Transition Service Schedule, PCC shall have the right to extend the
term of the agreement for a second renewal term of three (3) additional months. The Parties may
agree on an earlier expiration date respecting a specific Service by specifying such date on the
Transition Service Schedule for that Service. Services shall be provided up to and including the
date set forth in the applicable Transition Service Schedule, subject to earlier termination as
provided in Article VIII. It shall be the sole responsibility of the Service Recipient, upon and
after expiration or early termination of this Agreement with respect to a specific Service, to
perform, render and provide for itself (or to make arrangements with one or more Third Party
service providers to perform, render and provide) such Service, and to do all necessary planning
and make all necessary preparations in connection therewith.



ARTICLE VI

COMPENSATION




          Section 6.01. Charges for Services. The Service Recipient shall pay the Service
Provider the charges, if any, set forth on the Transition Service Schedules for each of the
Services listed therein as adjusted, from time to time, in accordance with the processes and
procedures established under Section 7.01 hereof, or, if no such charges are specifically indicated
otherwise on a Transition Service Schedule, the Fair Market Value of the Services; provided that
actual charges for the Services shall be, during the period beginning 181 days after the Effective
Date and ending 270 days after the Effective Date, 125% of such amounts and, during the period
beginning 271 days after the Effective Date and continuing through the remaining term of this
Agreement, 150% of such amounts. If there is any inconsistency between the Transition Service
Schedule and this Section 6.01, the terms of the Transition Service Schedule shall govern. The
Parties also intend, having regard to the reciprocal and transitional nature of this Agreement and
other factors, for charges to be easy to administer and justify; and, therefore, they hereby
acknowledge that it may be
counterproductive to try to recover every cost, charge or expense, particularly those that are
insignificant or de minimis.




          Section 6.02. Payment Terms. Except as otherwise specified in a Transition Service
Schedule, the Service Provider shall invoice the Service Recipient monthly (or on such other basis
as the Parties may mutually determine) for all charges pursuant to this Agreement. Such invoices
shall specify the Services provided to the Service Recipient during the preceding month and
identifying the Service fee applicable to each Service so specified, and shall be accompanied by
reasonable documentation or other reasonable explanations supporting such charges. Except as
otherwise specified in a Transition Service Schedule, the Service Recipient shall pay, net of
applicable withholding tax, if any, the Service Provider for all Services provided hereunder within
thirty (30) days after receipt of an invoice therefor by wire transfer of immediately available
funds to the account designated by the Service Provider for this purpose. Late payments shall bear
interest at a rate per annum equal to the Prime Rate plus 2.0%, calculated for the actual number of
days elapsed, accrued from and excluding the date on which such payment was due up to and including
the date of payment.










 



7




          Section 6.03. Taxes. The fees and charges payable by the Service Recipient under this
Agreement and set forth on the Transition Service Schedules shall be exclusive of any Sales Taxes
or excise taxes or any customs or import charges or duties or any similar charges or duties which
may be imposed by any Governmental Authority in connection with the purchase or delivery of the
Services or materials to the Service Recipient. The Service Recipient shall remit to the Service
Provider any Sales Taxes properly payable to the Service Provider pursuant to this Agreement.
Applicable Sales Taxes shall be indicated by the Service Provider separately on all of the Service
Provider’s invoices. The Parties shall co-operate with each other to minimize any applicable Sales
Taxes and each shall provide the other with any reasonable certificates or documents which are
useful for such purpose.




          Section 6.04. Performance under Ancillary Agreements. Notwithstanding anything to the
contrary contained herein, the Service Recipient shall not be charged under this Agreement for any
obligations that are specifically required to be performed under the Separation Agreement or any
other Ancillary Agreement; and any such other obligations shall be performed and charged for (if
applicable) in accordance with the terms of the Separation Agreement or such other Ancillary
Agreement.




          Section 6.05. Error Correction; True-up; Accounting. The Parties shall agree to
develop, through the Operating Committee or otherwise, mutually acceptable reasonable processes and
procedures for conducting internal audits and making adjustments to charges as a result of the
movement of employees and functions between the Parties, the discovery of errors or omissions in
charges, as well as a true-up of amounts owed. In no event shall such processes and procedures
extend beyond eighteen (18) months after completion of a Service.




ARTICLE VII

GENERAL OBLIGATIONS




          Section 7.01. Performance Metrics. Subject to Sections 3.02 to 3.04 and any other
terms and conditions of this Agreement, PEC shall maintain, and shall cause the relevant other
members of PEC Group to maintain, sufficient resources to perform their obligations hereunder.
Specific performance metrics for PEC for a specific Service may be set forth in the corresponding
Transition Service Schedule. Where none is set forth, PEC and the other relevant members of PEC
Group shall use Commercially Reasonable Efforts to provide Services, or to cause the Services to be
provided, in accordance with PEC’s policies, procedures, service levels and practices in effect
before the Effective Date and shall exercise the same care and skill as PEC exercises in performing
similar services for itself or for the other members of PEC Group. To the extent within the
possession and control of PCC and the other relevant members of the PCC Group, PCC shall provide,
and shall cause the other relevant members of the PCC Group to provide, PEC and the other relevant
members of the PEC Group with information and documentation sufficient for PEC and the other
relevant members of the PEC Group to perform the Services they are obligated to perform hereunder
as they were performed before the Effective Date and shall make available, as reasonably requested
by PEC or the other relevant members of the PEC Group, sufficient resources and timely decisions,
approvals and acceptances in order that PEC and the other relevant members of PEC Group may perform
their obligations hereunder in a timely manner.










 



8




          Section 7.02. Disclaimer of Warranties. Except as expressly provided in this
Agreement, PEC does not make any warranties or conditions, express, implied, conventional or
statutory, including but not limited to, the implied warranties or conditions of merchantability,
of quality or fitness for a particular purpose, with respect to the Services or other items or
deliverables provided by it or any other member of the PEC Group hereunder or any transactions
contemplated herein.




          Section 7.03. Transitional Nature of Services; Changes. The Parties acknowledge the
transitional nature of the Services and that a Service Provider may make changes from time to time
in the manner of performing the Services if the Service Provider is making similar changes in
performing similar services for itself and if the Service Provider provides to the Service
Recipient reasonable notice of the circumstances regarding such changes.




          Section 7.04. Responsibilities for Errors; Changes. Except in the case of Service
Provider’s gross negligence, bad faith or willful misconduct, the Service Provider’s sole
responsibility to the Service Recipient:




          (a) for errors or omissions in Services, shall be to furnish correct information, payment
and/or adjustment in the Services, at no additional cost or expense to the Service Recipient;
provided that the Service Provider must promptly advise the Service Recipient of any such error or
omission of which it becomes aware after using Commercially Reasonable Efforts




          to detect any such errors or omissions in accordance with the standard of care set forth in
Section 7.01; and




          (b) for failure to deliver any Service because of Impracticability, shall be to use
Commercially Reasonable Efforts, subject to Section 3.03, to make the Services available or to
resume performing the Services as promptly as reasonably practicable.




          Section 7.05. Cooperation and Consents. The Parties shall, and shall cause the other
relevant members of their respective Groups to, cooperate with each other in all matters relating
to the provision and receipt of Services. Such cooperation shall include exchanging information,
performing true-ups and adjustments, and obtaining all Third Party Consents, licenses or
sublicenses necessary to permit each Party to perform its obligations hereunder (including by way
of example, not by way of limitation, rights to use Third Party software needed for the performance
of Services). Pursuant to Section 11.03, the costs of obtaining such Third Party Consents, licenses
or sublicenses shall be borne by the Service Recipient. The Parties shall maintain, and shall cause
the other relevant members of their respective Groups to maintain, in accordance with its standard
document retention procedures, documentation supporting the information relevant to cost
calculations contained in the Transition Service Schedules.




          With respect to those Services that, in the reasonable opinion of PCC, relate to matters of
internal control over financial reporting and with respect to which PCC reasonably believes testing
of certain key controls maintained by the Service Provider is necessary in order to permit PCC’s
management to perform an adequate assessment of internal control over financial reporting (and to
permit its auditors or internal auditors to audit its internal control over financial reporting and
management’s assessment thereof), upon request by PCC no later than 90









 



9



days before the end of a
calendar year where such management assessment and related audit of its internal control over
financial reporting is actually required for SEC reporting, the Service Provider and PCC shall
jointly identify key controls over financial reporting maintained by the Service Provider. The
Service Provider will provide PCC’s external or internal auditors access to information, systems
and those individuals responsible for execution of any key controls maintained by the Service
Provider so as to enable the independent auditors or internal auditors to determine such controls
over the practices and procedures relating to the Service Provider’s performance of such Services
under this Agreement are in effect. The Service Provider will, and will use Commercially Reasonable
Efforts to cause its external or internal auditors to, provide information to PCC and PCC’s
external or internal auditors in order to allow PCC or PCC’s internal or external auditors to
perform procedures with respect to key controls which must be tested as part of PCC’s management
assessment process and required by generally accepted auditing standards, including, without
limitation, PCAOB Auditing Standard No. 2, and by Section 404 of the Sarbanes-Oxley Act of 2002 and
the rules promulgated thereunder. All expenditures incurred by a Service Provider in performing its
obligations under this paragraph shall be payable by the Service Recipient.



          Section 7.06. Alternatives. If the Service Provider reasonably believes it is unable to provide any Service because of a
failure to obtain necessary Consents, licenses or sublicenses pursuant to Section 7.05 or because
of Impracticability, the Parties shall cooperate to determine the best alternative approach. Until
such alternative approach is found or the problem otherwise resolved to the satisfaction of the
Parties, the Service Provider shall use Commercially Reasonable Efforts subject to Sections 3.02,
3.03 and 3.04, to continue providing the Service. To the extent an agreed upon alternative approach
requires the occurrence of costs or expenditures above and beyond that which is included in the
Service Provider’s charge for the Service in question, such additional costs and expenditures
shall, unless otherwise agreed, be borne by the Service Recipient.




          Section 7.07. Personnel.




          (a) Right to designate and change personnel. The Service Provider will have the right to
designate which personnel it will assign to perform the Services. The Service Provider also will
have the right to remove and replace any such personnel at any time or designate any of its
Affiliates or a Subcontractor at any time to perform the Services, subject to the provisions of
Article X; provided, however, that the Service Provider will use Commercially Reasonable Efforts to
limit the disruption to the Service Recipient in the transition of the Services to different
personnel or to a Subcontractor. In the event that personnel with the designated level of
experience are not then employed by the Service Provider, the Service Provider will use
Commercially Reasonable Efforts to provide such personnel or Subcontractor personnel having an
adequate level of experience; provided, however, that the Service Provider will have no obligation
to retain any individual employee for the sole purpose of providing the applicable Services.




          (b) Financial Responsibility. The Service Provider will pay for all personnel expenses,
including wages, of its employees performing the Services.










 



10




          (c) Service Managers and Chief Representatives. During the Term of this Agreement, PEC will
appoint (i) one of its employees (the “Service Manager”) who will have overall responsibility for
managing and coordinating the delivery of the Services and who shall serve as PEC’s representative
on the Operating Committee and (ii) one of its employees for each service as indicated in each
Transition Service Schedule (the “Chief Representative”). The Service Manager and the Chief
Representatives will coordinate and consult with the Service Recipient. The Service Provider may,
at its discretion, select other individuals to serve in these capacities during the Term of this
Agreement upon providing notice to the other Party. For greater certainty, a Chief Representative
may serve as such in respect of one or more Transition Service Schedules.




          Section 7.08. Insurance. Each Party shall obtain and maintain at its own expense
insurance of the type generally maintained in the ordinary course of its business. Except as
otherwise specified in a Transition
Service Schedule, the Service Provider shall not be required to obtain and maintain any
particular insurance in relation to providing any Service.




ARTICLE VIII

TERMINATION




          Section 8.01. Termination. The Service Recipient may terminate this Agreement or any
Service, with or without cause, at any time upon at least sixty (60) days, prior notice to the
Service Provider. As soon as reasonably practicable following receipt of any such notice, the
Service Provider shall advise the Service Recipient as to whether termination of such Service will
(a) require the termination or partial termination of, or otherwise affect the provision of,
certain other Services, or (b) result in any early termination costs, including those related to
Subcontractors. In the event that such termination is expected by the Service Provider to result
in any early termination costs, the Service Provider will, if practicable, provide to the Service
Recipient such information as it has reasonably available regarding the estimated amount of such
costs, which in the case of a Subcontractor may be based upon information provided by such
Subcontractor. Any early termination costs shall be borne by the Service Recipient as set forth in
Section 8.03. If either will be the case, the Service Recipient may withdraw its termination
notice within five (5) Business Days. If the Service Recipient does not withdraw the termination
notice within such period, such termination will occur in accordance with the original notice.




          In addition, the Parties agree that (a) this Agreement may be terminated in its entirety
immediately at the option of the non-defaulting Party, in the event that an Event of Default occurs
in relation to the other Party, and such termination shall take effect immediately upon the
non-defaulting Party providing notice to the other of the termination (except as otherwise
specified in clause (e) below), and that (b) either Party may terminate this Agreement (and the
corresponding Transition Service Schedule) with respect to a specific Service upon providing notice
to the other Party in the event that an Event of Default occurs in relation to such other Party,
and such termination shall take effect immediately upon the non-defaulting Party providing such
notice to the other (except as otherwise specified in clause (e) below).




          For the purposes of this Agreement, each of the following shall individually and collectively
constitute an “Event of Default”:










 



11




          (a) in relation to the Service Recipient, if the Service Recipient defaults in payment to the
Service Provider of any payments which are due and payable by it to the Service Provider pursuant
to this Agreement, and such default is not cured within thirty (30) days following receipt by the
Service Recipient of notice of such default;




          (b) in relation to the Service Provider, if the Service Provider defaults in payment to the
Service Recipient of any payments which are due and payable by it to the Service Recipient pursuant
to this Agreement (if any), and such default is not cured within thirty (30) days following receipt
by the Service Provider of notice of such default;




          (c) either Party breaches any of its material obligations to the other Party pursuant to this
Agreement (other than as set out in paragraphs (a) and (b) above), and fails to
cure it within thirty (30) days after receipt of notice from the non-defaulting Party
specifying the default in reasonable detail and demanding that it be rectified, provided that if
such breach is not capable of being cured within thirty (30) days after receipt of such notice and
the Party in default has diligently pursued efforts to cure the default within the thirty (30) day
period, no Event of Default under this paragraph (c) shall occur;




          (d) either Party breaches any material representation or warranty, or fails to perform or
comply with any covenant, provision, undertaking or obligation in or of the Separation Agreement
within thirty (30) days of notice by the other Party of any such failure;




          (e) either Party (i) is bankrupt or insolvent or takes the benefit of any statute in force for
bankrupt or insolvent debtors, or (ii) files a proposal or takes any action or proceeding before
any court of competent jurisdiction for its dissolution, winding-up or liquidation, or for the
liquidation of its assets, or a receiver is appointed in respect of its assets, which order, filing
or appointment is not rescinded within sixty (60) days.




          Section 8.02. Survival. Notwithstanding the foregoing, in the event of any termination
or expiration with respect to one or more Services, but less than all Services, this Agreement
shall continue in full force and effect with respect to any Services not terminated or expired.




          Section 8.03. Payment. Immediately following the Expiration Date, the Service Provider
shall cease, or cause the other members of the Group to which it belongs, or its Subcontractors to
cease, providing the Services, and the Service Recipient shall promptly pay or cause the other
members of the Group to which it belongs, to promptly pay all fees accrued pursuant to Article VI
but unpaid to the Service Provider, provided, however, that in case of earlier termination without
cause, the Service Recipient shall reimburse the Service Provider only to the extent of the
reasonable termination costs actually incurred by the Service Provider resulting from the Service
Recipient’s early termination of such Services, including those owed to Subcontractors. The Service
Provider will use Commercially Reasonable Efforts to mitigate such termination costs.




          Section 8.04. User ID; Passwords. The Parties shall use Commercially Reasonable
Efforts upon the termination or expiration of this Agreement or of any specific Service hereto to
ensure that access by one Party to the other Party’s systems is cancelled.










 



12




ARTICLE IX

RELATIONSHIP BETWEEN THE PARTIES




          The Service Provider is and will remain at all times an independent contractor in the
performance of all Services hereunder. In all matters relating to this Agreement, the Service
Provider will be solely responsible for the acts of its employees and agents, and employees or
agents of the Service Provider shall not be considered employees or agents of the Service
Recipient. Except as otherwise provided herein, the Service Provider will not have any right,




          power or authority to create any obligation, express or implied, on behalf of the Service
Recipient nor shall the Service Provider act or represent or hold itself out as having authority to
act as an agent or partner of the Service Recipient, or in any way bind or commit the Service
Recipient to any obligations. Nothing in this Agreement is intended to create or constitute a joint
venture, partnership, agency, trust or other association of any kind between the Parties or Persons
referred to herein, and each Party shall be responsible only for its respective obligations as set
forth in this Agreement. Neither the Service Provider and nor its employees shall be considered an
employee or agent of the Service Recipient for any purpose, except as expressly agreed by the
Parties. The Service Provider shall have sole responsibility for the supervision, daily direction
and control, payment of salary (including withholding of income taxes and deductions at source),
worker’s compensation, disability benefits and the like of its employees.




ARTICLE X

SUBCONTRACTORS




          Section 10.01. Subcontractors. The Service Provider may, subject to Section 10.02,
engage a “Subcontractor” to perform all or any portion of the Service Provider’s duties under this
Agreement, provided that any such Subcontractor agrees in writing to be bound by confidentiality
obligations at least as protective as the terms of Section 13.05 of the Separation Agreement
regarding confidentiality and non-use of information, and provided further that the Service
Provider remains responsible for the performance of such Subcontractor and for paying the
Subcontractor. As used in this Agreement, “Subcontractor” will mean any Person or entity engaged to
perform hereunder.




          Section 10.02. Assignment. In the event of any subcontracting by the Service Provider
to a non-Affiliate of the Service Provider of all or any portion of the Service Provider’s duties
under this Agreement, the Service Provider shall assign and transfer to the Service Recipient the
full benefit of all such non-Affiliate subcontractor’s performance covenants, guarantees,
warranties or indemnities (if any), to the extent same are transferable or assignable, in respect
of the portion of the Services provided to the Service Recipient pursuant to such subcontracting;
and if any such guarantees, warranties, indemnities and benefits are not assignable, the Service
Provider shall use Commercially Reasonable Efforts to procure the benefit of same for the Service
Recipient through other legal permissible means.




ARTICLE XI

INTELLECTUAL PROPERTY




          Section 11.01. Allocation of Rights by Ancillary Agreements. This Agreement and the
performance of this Agreement will not affect the ownership of any patent, trademark or









 



13



copyright
or other intellectual property rights allocated in the Separation Agreement or any of the Ancillary
Agreements.



          Section 11.02. Existing Ownership Rights Unaffected. Neither Party will gain, by virtue of this Agreement, any rights of ownership of copyrights,
patents, trade secrets, trademarks or any other intellectual property rights owned by the other.
Notwithstanding the foregoing, any ideas, concepts or any results arising out of the performance of
the Services (the “Results”) by the Service Provider hereunder shall be the exclusive property of
the Service Recipient. The Service Provider shall execute all documents and perform all other acts
necessary or desirable to confirm title in the name of the Service Recipient in the Results in any
jurisdiction of the world including all copyrights, trade secrets and industrial designs, and
provide assistance, if necessary, to protect or enforce the Service Recipient’s rights under said
intellectual property rights. Such obligation to execute documents and provide assistance shall
survive the expiration or early termination of this Agreement.




          The Service Recipient agrees to reimburse the Service Provider for any reasonable
out-of-pocket expenses arising out of the obligations under this Section 11.02. The Service
Provider hereby waives and shall cause its employees to waive, the whole of its and their moral
rights to any copyright material developed under this Agreement.




          Section 11.03. Third Party Software. In addition to the consideration set forth
elsewhere in this Agreement, the Service Recipient shall also pay any amounts (and applicable Sales
Taxes) that are required to be paid to any licensors of software that is used by the Service
Provider in connection with the provision of any Service hereunder, and any amounts (and applicable
Sales Taxes) that are required to be paid to any such licensors to obtain the Consent of such
licensors to allow the Service Provider to provide any of the Services hereunder. Subject to the
immediately preceding sentence and to the terms of the Separation Agreement, the Service Provider
will use Commercially Reasonable Efforts to obtain any Consent that may be required from such
licensors in order to provide any of the transition Services hereunder.




          Section 11.04. Termination of Licenses. Any license granted hereunder by the Service
Provider shall terminate ipso facto upon the expiration or early termination of this Agreement.




ARTICLE XII

NO OBLIGATION




          Neither Party assumes any responsibility or obligation whatsoever, other than the
responsibilities and obligations expressly set forth in this Agreement (including the exhibits and
schedules hereto), in the Separation Agreement or in a separate written agreement between the
Parties.




ARTICLE XIII

CONFIDENTIALITY




          Section 13.01. Confidentiality. The terms of the Confidentiality provisions set forth
in Article XIII of the Separation Agreement shall apply to all confidential information disclosed
in the course of the Parties’ interactions under this Agreement. This Article XIII of the









 



14



Agreement sets out
additional requirements regarding confidential information for the purposes of this Agreement.



          Section 13.02. PCC Confidential Information. The term “PCC Confidential Information”
means all business or operational information concerning PCC or any other member of the PCC Group
(including (i) earnings reports and forecasts, (ii) macro-economic reports and forecasts, (iii)
business and strategic plans, (iv) general market evaluations and surveys, (v) litigation
presentations and risk assessments, (vi) budgets, (vii) financing and credit-related information,
(viii) specifications, ideas and concepts for products and services, (ix) quality assurance
policies, procedures and specifications, (x) customer information, (xi) Software, (xii) training
materials and information, and (xiii) all other know-how, methodology, procedures, techniques and
trade secrets related to design, development and operational processes) which, prior to or
following the Effective Time, has been disclosed by PCC or any other member of the PCC Group to PEC
or any other member of the PEC Group, in written, oral (including by recording), electronic, or
visual form to, or otherwise has come into the possession of, PEC or any other member of the PEC
Group (except to the extent that such information can be shown to have been (i) in the public
domain through no action of PEC or any other member of the PEC Group or (ii) lawfully acquired from
other sources by PEC or any other member of the PEC Group to which it was furnished; provided;
however, in the case of clause (ii) that, to the knowledge of PEC or the relevant member of the PEC
Group, such sources did not provide such information in breach of any confidentiality obligations).




          Section 13.03. Permitted Purpose. The term “Permitted Purpose” means the provision of
a “Service” by the Service Provider to the Service Recipient under this Agreement.




          Section 13.04. Disclosure. Members of the PEC Group may use PCC Confidential
Information in connection with a Permitted Purpose, provided that for purposes of this Agreement,
PCC Confidential Information shall not be used by the Service Provider for any purpose other than a
Permitted Purpose or in any way that is detrimental to the Service Recipient. In particular,



          (a) the Service Provider shall not disclose any PCC Confidential Information to any employee
of the Service Provider who does not have a need to know such PCC Confidential Information in order
to perform the Permitted Purpose;



          (b) the Service Provider shall not use the PCC Confidential Information other than for such
purposes as shall be expressly permitted under this Agreement.



          Section 13.05. Custody. The PCC Confidential Information, including any derivative
documents prepared by PEC Group, will be held in safe custody and kept confidential on the terms
set forth in this Agreement. Each PEC Group employee who is authorized to have or be aware of PCC



          Confidential Information, will store that information in his possession in separate paper
and/or electronic files.



          Section 13.06. Expiration of Confidentiality Provisions. The obligations of the
Parties under this Article XIII shall survive the expiration or earlier termination of this
Agreement; provided, however, that in any event, the obligations of the Parties under this Article









 



15



XIII shall expire on the fifth anniversary of the expiration or earlier termination of this
Agreement.



ARTICLE XIV

LIMITATION OF LIABILITY AND INDEMNIFICATION




          Section 14.01. Indemnification. PEC shall indemnify, defend and hold harmless PCC,
each other member of the PCC Group and each of their respective directors, officers and employees,
and each of the heirs, executors, trustees, administrators, successors and assignors of any of the
foregoing (collectively, the “PCC Indemnified Parties”), from and against any and all Liabilities
of the PCC Indemnified Parties incurred by, borne by or asserted against any of them relating to,
arising out of or resulting from any of the following items (without duplication):




          (a) the breach or the failure of performance by PEC of any of the covenants, promises,
undertakings or agreements which it is obligated to perform under this Agreement;



          (b) death of or injury of any person whomsoever, including but not limited to directors,
officers, employees, servants or agents of PCC, of another member of PCC Group, or contractors to
the extent that such Liabilities are not covered by worker’s compensation;



          (c) loss of, or damage to, or destruction of any property whatsoever, including any loss of
use thereof, including without limitation, property of PCC, of another member of PCC Group, or
their respective directors, officers, employees, agents, subsidiaries or subcontractors; or



          (d) any claim or assertion that the execution or performance by PCC of its obligations under
this Agreement violates or interferes with any contractual or other right or obligation or
relationship of PEC to or with any other Person,
caused by, arising out of, or in any way related to this Agreement, but subject however to the
limitations of liability provided in this Agreement.



          PCC shall indemnify, defend and hold harmless PEC, each other member of PEC Group and each of
their respective directors, officers and employees, and each of the heirs, executors, trustees,
administrators, successors and assignors of any of the foregoing (collectively, the “PEC
Indemnified Parties”), from and against any and all Liabilities of the PEC Indemnified Parties
incurred by, borne by or asserted against any of them relating to, arising out of or resulting from
any of the following items (without duplication):



          (a) the breach or the failure of performance by PCC of any of the covenants, promises,
undertakings or agreements which it is obligated to perform under this Agreement;



          (b) death of or injury of any person whomsoever, including but not limited to directors,
officers, employees, servants or agents of PEC, of another member of PEC Group, or contractors to
the extent that such Liabilities are not covered by worker’s compensation;



          (c) loss of, or damage to, or destruction of any property whatsoever, including any loss of
use thereof, including without limitation, property of PEC, of another member of









 



16



PEC Group, or
their respective directors, officers, employees, agents, subsidiaries or subcontractors; or



          (d) any claim or assertion that the execution or performance by PEC of its obligations under
this Agreement violates or interferes with any contractual or other right or obligation or
relationship of PCC to or with any other Person,




caused by, arising out of, or in any way related to this Agreement, the provision of Services as
contemplated in this Agreement by PEC, or the other members of PEC Group, their respective
directors, officers, employees, servants, agents, subsidiaries or subcontractors, but subject
however to the limitations of liability provided in this Agreement.




          Section 14.02. Limitation of Liability. Notwithstanding the provisions of Section
14.01, the total aggregate liability of PEC to PCC for all events, acts or omissions of PEC under
or in connection with this Agreement or the Services provided by PEC hereunder, and the total
aggregate liability of PCC to PEC for all events, acts or omissions of PCC under or in connection
with this Agreement, in each case, whether based on an action or claim in contract, warranty,
equity, negligence, tort or otherwise, shall not exceed (i) in the case of the liability of PEC to
PCC, an amount equal to the value of the Services payable by PCC to PEC under this Agreement, or
(ii) in the case of the liability of PCC to PEC, an amount equal to $1.0 million; provided that the
foregoing limit shall not apply (i) in the case of the liability of PEC to PCC, with respect to any
liability arising out of or relating to PEC’s gross negligence or willful misconduct or the gross
negligence or willful misconduct of its personnel, mandataries or agents or other Persons for which
it is responsible under Applicable Law, or (ii) in the case of the liability of PCC to PEC, with
respect to any liability arising out of or relating to PCC’s gross negligence or willful misconduct
or the gross negligence or willful misconduct of its personnel, mandataries or agents or other
Persons for which it is responsible under Applicable Law.




          In no event shall any member of PEC Group or PCC Group be liable to any member of the other
Group for any special, consequential, indirect, collateral, incidental or punitive damages, lost
profits, or failure to realize expected savings, or other commercial or economic loss of any kind,
however caused and on any theory of liability, (including negligence) arising in any way out of
this Agreement, whether or not such Person has been advised for the possibility of any such
damages; provided, however, that the foregoing limitations shall not limit either Party’s
indemnification obligations for liabilities to with respect to Third Party Claims as set forth in
Article IX of the Separation Agreement.




          Section 14.03. Exclusions. Notwithstanding any provision to the contrary in this
Agreement, the foregoing limitations in this Article XIV shall not apply to PEC’s obligation to
indemnify PCC in respect of an intellectual property right infringement claim instituted or made by
a Third Party in connection with PEC’s Services or software or to PCC’s obligation to indemnify PEC
in respect of an intellectual property right infringement claim instituted or made by a Third Party
in connection with PCC’s Services or software.




          Section 14.04. Provisions Applicable with respect to Indemnification Obligations.
Article V of the Separation Agreement shall apply mutatis mutandis with respect to any Liability
subject to indemnification or reimbursement pursuant to Article XIV of this Agreement.










 



17




          Section 14.05. Survival. The rights and obligations of the Parties under this Article
XIV shall survive the expiration or earlier termination of this Agreement.




ARTICLE XV

DISPUTE RESOLUTION




          The Separation Agreement with respect to Dispute Resolution, effective on the Effective Date,
among the Parties and other parties thereto shall govern all disputes, controversies or claims
(whether arising in contract, delict, tort or otherwise) between the Parties that may arise out of,
or relate to, or arise under or in connection with, this Agreement or the transactions contemplated
hereby (including all actions taken in furtherance of the transactions contemplated hereby), or the
commercial or economic relationship of the Parties relating hereto or thereto.




ARTICLE XVI

ASSIGNMENT




          Section 16.01. Prohibition of Assignment. Neither Party shall assign or transfer this
Agreement, in whole or in part, or any interest or obligation arising under this Agreement except
as permitted by Section 7.07(a), Article X and Section 16.02, without the prior written consent of
the other Party.




          Section 16.02. Assignment to PEC Group Company. PEC may elect to have one or more of
the members of the PEC Group assume the rights and obligations of PEC under this Agreement.




ARTICLE XVII

MISCELLANEOUS




          Section 17.01. Notices. All notices and other communications hereunder shall be given
in the manner set forth in Section 15.02 of the Separation Agreement.




          Section 17.02. Governing Law. This Agreement shall be construed in accordance with,
and governed by, the laws of the State of Delaware, without regard to the conflicts of law rules of
such state.




          Section 17.03. Judgment Currency. The obligations of a Party to make payments
hereunder shall not be discharged by an amount paid in any currency other than Dollars, whether
pursuant to a court order or judgment or arbitral award or otherwise, to the extent that the amount
so paid upon conversion to Dollars and transferred to an account indicated by the Party to receive
such funds under normal banking procedures does not yield the amount of Dollars due; and each Party
hereby, as a separate obligation and notwithstanding any such judgment, agrees to indemnify each
other Party against, and to pay to such Party on demand, in Dollars, any difference between the sum
originally due in Dollars and the amount of Dollars received upon any such conversion and transfer.




          Section 17.04. Entire Agreement. This Agreement, the other Ancillary Agreements, the
Separation Agreement and exhibits, schedules and appendices hereto, including









 



18



the Transition
Services Schedules, and thereto and the specific agreements contemplated herein or thereby, contain
the entire agreement between the Parties with respect to the subject matter hereof and supersedes
all previous agreements, negotiations, discussions, writings, understandings, commitments and
conversations with respect to such subject matter. No agreements or understandings exist between
the Parties other than those set forth or referred to herein or therein.



          Section 17.05. Conflicts. In case of any conflict or inconsistency between this
Agreement and the Separation Agreement, this Agreement shall prevail. In case of any conflict or
inconsistency between the terms and conditions of this Agreement (excluding, for the purpose of
this Section 17.05, any Transition Service Schedule thereto) and the terms of any Transition
Service Schedule, the provisions of the Transition Service Schedule shall prevail.




          Section 17.06. Force Majeure. No Party shall be deemed in default of this Agreement to
the extent that any delay or failure in the performance of its obligations under this Agreement
results from superior force (“Force Majeure”) or any act, occurrence or omission beyond its
reasonable control and without its fault or negligence, such as fires, explosions, accidents,
strikes, lockouts or labor
disturbances, floods, droughts, earthquakes, epidemics, seizures of cargo, wars (whether or
not declared), civil commotion, acts of God or the public enemy, action of any government,
legislature, court or other Governmental Authority, action by any authority, representative or
organization exercising or claiming to exercise powers of a government or Governmental Authority,
compliance with Applicable Law, blockades, power failures or curtailments, inadequacy or shortages
or curtailments or cessation of supplies of raw materials or other supplies, failure or breakdown
of equipment of facilities or, in the case of computer systems, any failure in electrical or air
conditioning equipment (a “Force Majeure Event”). If a Force Majeure Event has occurred and its
effects are continuing, then, upon notice by the Party who is delayed or prevented from performing
its obligations to the other Party, (i) the affected provisions or other requirements of this
Agreement shall be suspended to the extent necessary during the period of such disability, (ii) the
Party which is delayed or prevented from performing its obligations by a Force Majeure Event shall
have the right to apportion its Services in an equitable manner to all users and (iii) such Party
shall have no liability to the other Party or any other Person in connection therewith. The Party
which is delayed or prevented from performing its obligations by the Force Majeure Event shall
resume full performance of this Agreement as soon as reasonably practicable following the cessation
of the Force Majeure Event (or the consequences thereof).




          Section 17.07. Amendment and Waiver. This Agreement may not be altered or amended, nor
may any rights hereunder be waived, except by an instrument in writing executed by the Party or
Parties to be charged with such amendment or waiver. No waiver of any terms, provision or condition
of or failure to exercise or delay in exercising any rights or remedies under this Agreement, in
any one or more instances, shall be deemed to be, or construed as, a further or continuing waiver
of any such term, provision, condition, right or remedy or as a waiver of any other term, provision
or condition of this Agreement.




          Section 17.08. Further Assurances. Each Party agrees to use Commercially Reasonable
Efforts to execute any and all documents and to perform such other acts as may be necessary or
expedient to further the purposes of this Agreement and the relations contemplated









 



19



hereby. Without
limiting the foregoing and the provisions of the Separation Agreement each Party shall make
available during normal business hours for inspection by the other Party and such other Persons as
the other Party shall designate in writing, all books and records in the possession which relate to
the Services and which are necessary to confirm the said Party’s compliance with its obligations
under this Agreement.



          Section 17.09. Severability. The provisions of this Agreement are severable and should
any provision hereof be void, voidable or unenforceable under any applicable law, such provision
shall not affect or invalidate any other provision of this Agreement, which shall continue to
govern the relative rights and duties of the Parties as though such void, voidable or unenforceable
provision were not a part hereof.




          Section 17.10. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original instrument, but all of which together shall
constitute but one and the same Agreement.




[Signatures appear on following page.]










 



20




     IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the
day and year first above written.




	 	 	 	 	 
	 	PEABODY ENERGY CORPORATION

 	 
	 	By:  	/s/ Richard A. Navarre
 	 
	 	 	Name:  	Richard A. Navarre 	 
	 	 	Title:  	Executive Vice President 	 
	 



	 	 	 	 	 
	 	PATRIOT COAL CORPORATION

 	 
	 	By:  	                                              /s/ Richard M. Whiting
 	 
	 	 	Name:  	Richard M. Whiting 	 
	 	 	Title:  	President & Chief Executive Officer