exv10w5



 



Exhibit
10.5





EXECUTION COPY




SALARIED EMPLOYEE

LIABILITIES ASSUMPTION AGREEMENT




     This SALARIED EMPLOYEE LIABILITIES ASSUMPTION AGREEMENT (“Agreement”) is made on the 22nd day
of October, 2007 by and between Peabody Holding Company, LLC (“PHC”), a Delaware limited liability
company with principal offices at 701 Market Street, St. Louis, MO 63101, Patriot Coal Corporation
(“Patriot”), a Delaware corporation with principal offices at 12312 Olive Boulevard, Suite 400, St.
Louis, Missouri, Peabody Coal Company, LLC (“PCC”), a Delaware limited liability company with
principal offices at 12312 Olive Boulevard, Suite 400, St. Louis, Missouri, and, solely with
respect to its obligations under Section 7 hereof, Peabody Energy Corporation (“PEC”), a Delaware
corporation with principal offices at 701 Market Street, St. Louis, MO 63101 (each of the foregoing
being sometimes referred to hereinafter individually as “a party” or jointly as “the parties”).



RECITALS




     WHEREAS, contemporaneously herewith, all of the shares of common stock of Patriot have been
distributed to the stockholders of PEC, PHC’s ultimate parent company, and Patriot will indirectly
own all of the capital stock of PCC; and



     WHEREAS, PCC is obligated under the Peabody Investments Corp. and Affiliates Welfare Benefit
Plan (the “Salaried Employer Plans”) to provide retiree healthcare to certain of its retirees and
their eligible dependents; and



     WHEREAS, the parties desire that PCC continue to provide the retiree healthcare required by
the Salaried Employer Plans;



     WHEREAS, PHC has agreed to assume the liabilities of PCC for provision of healthcare pursuant
to the Salaried Employer Plans to certain retirees and their eligible dependents to the extent
expressly set forth in this Agreement; and



     WHEREAS, contemporaneously herewith PHC and Patriot have entered into an Administrative
Service Agreement pursuant to which Patriot will take certain actions necessary and appropriate for
the administration of the Salaried Employer Plans to certain retirees and their eligible dependents
and delivery of benefits constituting Salaried Employee Liabilities (as defined below), except as
provided in Section 2(c).



     NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements contained
herein, the parties do hereby agree as follows:



     Section 1. Defined Terms.



     (a) The term “Effective Date” shall mean the date first hereinabove entered.



1









 





     (b) The term “Salaried Employee Liabilities” shall mean the amounts PCC is obligated either to
pay for healthcare benefits to, or to reimburse for the purchase of healthcare insurance by, former
employees of PCC who retired on or prior to December 31, 2006, each as identified on Attachment A
hereto, and such retirees’ eligible dependents, under the terms of the Salaried Employer Plans as
in effect on the date hereof.



     Section 2. PHC Assumption of Liabilities.



     (a) PHC assumes, and agrees to pay and discharge when due in accordance herewith, the Salaried
Employee Liabilities.



     (b) With respect to former employees of PCC who retired on or prior to December 31, 2006 who
receive healthcare benefits from PCC, and their eligible dependents, Patriot shall instruct each
third party administrator to deliver each invoice with respect to the Salaried Employee Liabilities
directly to PHC in accordance with such third party administrator’s normal billing cycle, and PHC
shall pay each such invoice in full (solely to the extent such amounts relate to the Salaried
Employee Liabilities) by wire transfer in immediately available funds when due. PHC shall pay the
fees of the third-party administrators of the medical and prescription drug services to the
retirees identified on Attachment A, and their eligible dependents, when due. The parties hereto
acknowledge that the current practice is to include such fees in the last invoice of the month
related to such medical or prescription drug services.



     (c) With respect to former employees of PCC who retired (i) on or after January 1, 2003 and on
or prior to December 31, 2004, but who were not eligible for retirement prior to January 1, 2003,
or (ii) on or after January 1, 2005 and on or prior to December 31, 2006, PCC shall instruct such
retirees to send reimbursement claims to purchase healthcare insurance to PHC and PHC shall pay
such reimbursement claims (solely to the extent such amounts relate to the Salaried Employee
Liabilities) by check promptly following receipt of such request.



     Section 3. Mutual Cooperation. Each of PHC, Patriot and PCC will use their
commercially reasonable efforts to cooperate with each other to give full effect to the
transactions contemplated by this Agreement. If PHC provides written notice that any amounts were
paid under this agreement in excess of the actual Salaried Employee Liabilities, Patriot and PCC
will use its commercially reasonable efforts to recover such excess amounts for PHC’s benefit.



     Section 4. Settlement of Claims. Patriot shall immediately notify PHC when Patriot or
any of its subsidiaries is sued by a former employee or his or her eligible dependents regarding
the Salaried Employee Liabilities. Patriot and PCC may not settle any such dispute without the
prior written consent of PHC, not to be unreasonably withheld or delayed. If Patriot or PCC
settles any such claim without the prior written consent of PHC, then PHC shall not be liable for
reimbursement of any amounts paid by Patriot or PCC as a result of such un-consented settlement
under this Agreement.


Section 5. PHC Right to Pursue a Claim or Defense. If PHC determines that Patriot
and/or PCC is failing to pursue with reasonable diligence a claim or defense related to any
Salaried Employee Liabilities, it shall notify Patriot and/or PCC in writing of such failure. If




2









 





Patriot and/or PCC fails or refuses to pursue such claim or defense diligently within thirty
(30) days of such notice, then PHC at its option may elect to pursue such claim or defense at its
cost in the name of Patriot or PCC. Any contest assumed by PHC pursuant to this provision shall be
conducted by attorneys employed or retained by PHC (subject to the right of Patriot and/or PCC to
participate in such prosecution or defense at Patriot’s or PCC’s cost) and PHC may settle or
compromise the claim or defense without the consent of Patriot and/or PCC, so long as such
settlement or compromise does not include any payment or other obligation of Patriot, PCC or their
respective controlled affiliates. PHC, Patriot and PCC shall use their commercially reasonable
efforts to cooperate with each other in the continued prosecution or defense of any such claim,
including the provision of witnesses and production of documents.



     Section 6. Maintenance of Books and Records; Inspection. Patriot shall, at all times
during the continuance of this Agreement, maintain full and complete books of account and other
records with respect to all activities under this Agreement including, but not limited to, records
of all payments made in connection with, or as a result of, such activities and all contracts
entered and evaluations performed with respect to payment of Salaried Employee Liabilities. PHC
shall, at all times during the continuance of this Agreement, have the right to inspect, copy,
and/or audit all account books and other records with respect to this Agreement at Patriot’s
offices and during regular business hours; provided that (i) PHC is not entitled to inspect such
books and records more than once every six months, (ii) PHC shall provide at least forty-eight (48)
hours advance notification, including reasonable detail of the materials to be reviewed, and (iii)
no such inspection or audit shall unreasonably interfere with the normal and regular conduct of
Patriot’s business.



     Section 7. PEC Guarantee. PEC hereby irrevocably and unconditionally guarantees the
prompt and full payment by PHC of all amounts owed by it under this Agreement, subject to its right
of setoff set forth in the Separation Agreement, Plan of Reorganization and Distribution, dated as
of October 22, 2007 (the “Separation Agreement”) by and between PEC and Patriot. Such guaranty
shall be a guaranty of payment and not merely of collection, and shall not be conditioned or
contingent upon the pursuit of any remedies against PHC. The liability of PEC under this guaranty
shall, to the fullest extent permitted under applicable law, be absolute, unconditional and
irrevocable. PEC hereby waives any and all notice of the creation, renewal, extension or accrual
of any of the guaranteed obligations and notice of or proof of reliance by Patriot or PCC upon this
guaranty or acceptance of this guaranty. The guaranteed obligations, and any of them, shall
conclusively be deemed to have been created, contracted or incurred in reliance upon this guaranty.
When pursuing its rights and remedies hereunder against PEC, neither Patriot nor PCC shall be
under any obligation to pursue such rights and remedies it may have against PHC or any right of
offset with respect thereto, and any failure by Patriot or PCC to pursue such other rights or
remedies or to collect any payments from PHC or to realize upon or to exercise any such right of
offset shall not relieve PEC of any liability hereunder, and shall not impair or affect the rights
and remedies, whether express, implied or available as a matter of law, of Patriot or PCC. PEC
irrevocably waives acceptance hereof, presentment, demand, protest, promptness, diligence,
obligation to protect, secure or perfect any security interest and any notice. Neither Patriot nor
PCC shall be obligated to file any claim relating to any guaranteed obligation in the event that
PHC becomes subject to a bankruptcy, reorganization or similar proceeding, and the failure of
Patriot or PCC to so file shall not affect PEC’s obligations hereunder. In the event that any
payment to Patriot or PCC in respect of any guaranteed



3









 




obligation is rescinded or must otherwise be returned for any reason whatsoever, PEC shall
remain liable hereunder with respect to the guaranteed obligation as if such payment had not been
made, and the guaranty shall be reinstated and shall continue even if otherwise terminated.




     Section 8. Indemnification. PHC agrees that it shall indemnify, defend and hold
harmless each of Patriot, PCC and their respective affiliates and the successors, assigns,
employees, officers, directors and agents of each, from and against any claims, actions or causes
of action, damages, penalties, fines, assessments, attorney fees or other costs or expenses
principally resulting from the failure of PHC to timely pay and discharge the Salaried Employee
Liabilities.



     Section 9. Resolution of Disputes. Any party or parties to a dispute or disagreement
under this Agreement (“Covered Dispute”) may give the other parties to the Covered Dispute written
notice of the Covered Dispute initiating the provisions hereunder. Within ten days after delivery
of the notice of a Covered Dispute, the receiving parties shall submit to the other a written
response. The notice and the response shall include a statement of each party’s respective position
and a summary of arguments supporting that position and the name and title of the executive who
will represent the claimants and of any other individual who will accompany such executive in
resolving the Covered Dispute. Within twenty (20) days after delivery of the first notice, such
executives shall meet at a mutually acceptable time and place, and thereafter as often as they
reasonably deem necessary, and shall negotiate in good faith to attempt to resolve the Covered
Dispute. All reasonable requests for information made by one party to the other will be honored.
If the Covered Dispute has not been resolved by negotiation within thirty (30) days of the first
notice of the Covered Dispute, the parties to the Covered Dispute may, by their mutual consent,
submit the Covered Dispute to arbitration in St. Louis, Missouri. Arbitration of any Covered
Dispute shall be conducted in accordance with the Commercial Arbitration Rules of the American
Arbitration Association in effect on the date of the first notice of the Covered Dispute. Any
decision of the arbitrator (or arbitrators) agreed upon or appointed and acting pursuant to this
Section 9 shall be final and binding upon the parties and judgment may be entered thereon, upon the
application of any of the parties, by any court of competent jurisdiction. The arbitrator may also
award reasonable attorney’s fees and the costs of the arbitration to the prevailing party. This
Section 9 shall not preclude any of the parties from seeking a temporary restraining order,
preliminary injunction or other temporary injunctive relief necessary to enforce this Section 9 or
protect rights under this Agreement. If the parties do not mutually agree to arbitrate the Covered
Dispute, the Covered Dispute shall be resolved pursuant to Section 15.08 of the Separation
Agreement.



     Section 10. Waiver. The failure of any party to comply with any of its obligations or
agreements or to fulfill any conditions contained in this Agreement may be excused only by a
written waiver from the other parties. Failure by any party to exercise, or delay by any party in
exercising, any right under this Agreement shall not operate as a waiver thereof, nor shall any
single or partial exercise of any right hereunder by a party preclude any other or future exercise
of that right or any other right hereunder by such party.



     Section 11. Notices. All notices, requests or other communications required or
permitted hereunder shall be given in writing by hand delivery, registered mail, certified mail or
overnight courier, return receipt requested, postage prepaid, to the party to receive the same at
its respective address set forth below, or at such other address as may from time to time be



4









 




designated by such party to the others in accordance with this Section 11.




If to Patriot, to:




Joseph W. Bean

Senior Vice President, General Counsel and Corporate Secretary

Patriot Coal Corporation

12312 Olive Boulevard, Suite 400

St. Louis, MO 63141

Fax:




If to PCC, to:




Joseph W. Bean

Senior Vice President, General Counsel and Corporate Secretary

Patriot Coal Corporation

12312 Olive Boulevard, Suite 400

St. Louis, MO 63141

Fax:




If to PHC, to:




Alexander Schoch, Esq.

Executive Vice President Law and Chief Legal Officer

Peabody Holding Company, LLC

701 Market Street

St. Louis, MO 63101

Fax: 314-342-3419



All such notices and communications hereunder shall be deemed given when received, as evidenced by
the acknowledgment of receipt issued with respect thereto by the applicable postal authorities or
the signed acknowledgment of receipt of the person to whom such notice or communication shall have
been addressed or his or her authorized representative.




     Section 12. No Third-Party Beneficiaries. Neither this Agreement nor any provision of
it shall create any right in favor of or impose any obligation upon any person or entity other than
the parties hereto and their respective successors and permitted assigns. Without limiting the
generality of the foregoing, this Agreement is not intended to, and does not, create any rights,
third party or otherwise, on behalf of any retiree or dependent, or any other person or individual.
No third party shall be entitled to any subrogation rights with respect to any obligation of any
party under this Agreement.



     Section 13. Captions and Paragraph Headings. Captions and paragraph headings are used
hereinafter for convenience only and are not a part of this Agreement and shall not be used in
construing it.



5









 





     Section 14. Entire Agreement. The making, execution and delivery of this Agreement by
the parties has been induced by no representations, statements, warranties or agreements other than
those herein expressed. Notwithstanding any provisions in any other agreement, this Agreement,
together with the Separation Agreement and the other agreements contemplated thereby, including
without limitation the Administrative Services Agreement, dated as of October 22, 2007, by and
between PHC and Patriot, embodies the entire understanding of the parties and their respective
subsidiaries and affiliates relating to the matters set forth herein. This Agreement may be
modified only by a written instrument executed by the parties. The parties make no representation
or warranties with respect to the subject matter of this Agreement not expressly set forth in this
Agreement. This Agreement supersedes and terminates all other discussions, negotiations,
understandings, arrangements and agreements between or among PHC and Patriot, or any respective
affiliated companies, entities or persons relating to the subject matter hereof.



     Section 15. Assignability. Neither of the parties hereto may assign this Agreement
without the prior written consent of the other parties, which consent will not be unreasonably
withheld or delayed. Any impermissible attempted assignment of this Agreement without such prior
written consent shall be void, and the party assigning or attempting to assign this Agreement shall
remain bound by and obligated by this Agreement as if no assignment or attempted assignment had
occurred.



     Section 16. Successors and Assigns. This Agreement and the provisions hereof shall be
binding upon and inure to the benefit of the respective successors and permitted assigns of the
parties hereto.



     Section 17. Severability. In the event one or more of the provisions of this
Agreement shall, for any reason, be held invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect the validity, legality or
enforceability of any other provision of this Agreement, and this Agreement shall be construed as
if such invalid, illegal or unenforceable provision was not a part of this Agreement.



     Section 18. Counterparts. This Agreement may be executed in any number of duplicate
counterparts, each of which shall be deemed an original and all of which together shall constitute
one and the same instrument.



     Section 19. Governing Law. The parties hereto have agreed that the validity,
construction, operation and effect of any and all of the terms and provisions of this Agreement
shall be determined and enforced in accordance with the laws and regulations of the State of
Delaware, without giving effect to principles of conflicts of law thereunder.



6









 





     IN WITNESS WHEREOF, the parties hereto have caused this Salaried Employee Liabilities
Assumption Agreement to be duly executed by one of their respective officers duly authorized and
directed as of the date first written above.



	 	 	 	 	 	 	 	 	 	 	 
	PEABODY HOLDING COMPANY, LLC	 	 	 	PATRIOT COAL CORPORATION	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ Richard A. Navarre
 

	 	 	 	By:
	 	/s/ Richard M. Whiting
 

	 	 
	 

	 	Name: Richard A. Navarre
	 	 	 	 	 	Name: Richard M. Whiting	 	 
	 

	 	Title: Executive Vice President
	 	 	 	 	 	Title: President & Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Solely for purposes of Section 7 hereof:	 	 	 	PEABODY COAL COMPANY LLC	 	 
	PEABODY ENERGY CORPORATION	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ Richard A. Navarre
 

	 	 	 	By:
	 	/s/ Mark N. Schroeder
 

	 	 
	 

	 	Name: Richard A. Navarre
	 	 	 	 	 	Name: Mark N. Schroeder	 	 
	 

	 	Title: Executive Vice President
	 	 	 	 	 	Title: Vice President & Treasurer	 	 







7