exv10w3






Exhibit 10.3




Deed




Execution copy




Deed of Guarantee




Peabody Energy Corporation




ArcelorMittal S.A.




ArcelorMittal Netherlands B.V.




ArcelorMittal Mining Australasia B.V.




Peabody Acquisition Co. No. 3 Pty Ltd




Peabody Acquisition Co. No 2 Pty Ltd



tony.damian@freehills.com








	 	 	 

	MLC Centre Martin Place Sydney NSW 2000 Australia

	 	Telephone +61 2 9225 5000 Facsimile +61 2 9322 4000
	GPO Box 4227 Sydney NSW 2001 Australia

	 	www.freehills.com DX 361 Sydney
	 
	 	 
	Sydney Melbourne Perth Brisbane Singapore

	 	Associated offices in Jakarta Beijing Shanghai Hanoi Ho Chi Minh City











 









 











	 	 	 

	Deed of Guarantee
	 	 
	 
	 	 
	Date ►	 29 July 2011
	 	 
	 
	 	 
	Between the parties
	 	 
	 
	 	 
	Peabody

	 	Peabody Energy Corporation


	 

	 	of 701 Market Street, St. Louis, Missouri, United States of
America, 63101

 
	 

	 	(Peabody)
	 
	 	 
	Peabody Shareholder

	 	Peabody Acquisition Co. No. 2 Pty Ltd


	 

	 	ACN 146 797 417 of Level 13, BOQ Centre, 259 Queen Street,
Brisbane, Queensland 4000


	 

	 	(Peabody Shareholder)
	 
	 	 
	ArcelorMittal

	 	ArcelorMittal S.A.


	 

	 	of 19 avenue de la Liberté, L-2930 Luxembourg City, Luxembourg


	 

	 	(ArcelorMittal)
	 
	 	 
	AM

	 	ArcelorMittal Netherlands B.V.


	 

	 	of Eemhavenweg 70, 3089 KH Rotterdam, Netherlands


	 

	 	(AM)
	 
	 	 
	AM BV2

	 	ArcelorMittal Mining Australasia B.V.


	 

	 	of Eemhavenweg 70, 3089 KH Rotterdam, Netherlands


	 

	 	(AM BV2)
	 
	 	 
	Holdco

	 	Peabody Acquisition Co. No. 3 Pty Ltd


	 

	 	ACN 152 004 398 of Level 13, BOQ Centre, 259 Queen Street,
Brisbane, Queensland 4000


	 

	 	(Holdco)
	 
	Recitals

	 	1     Holdco, a subsidiary of Peabody Shareholder and an indirect
subsidiary of Peabody, owns all the shares in Bidco.

	 
	 	 
	 
	 	2     Bidco may propose to make an off-market takeover bid for all of







 









 










Parties




	 	 	 

	 

	 	      the shares on issue in Macarthur Coal Limited (Macarthur) (the Takeover Bid).
	 
	 
	 	3     Holdco, Bidco, AM, AM BV2 and Peabody Shareholder are parties to the
Co-operation and Contribution Agreement pursuant to which Peabody Shareholder
and AM BV2 will provide funding to Holdco, in the ratio of 60:40, in exchange
for a proportionate number of shares in Holdco. Holdco is to fund Bidco for the
sole purposes of:

	 
	 

	 	•    paying for the Macarthur shares acquired by Bidco as a result
of the Takeover Bid; and

	 
	 

	 	•    paying any Duty arising in connection with the Takeover Bid.

	 
	 

	 	4    Holdco, Bidco, AM, AM BV2 and Peabody Shareholder are also parties to
the Shareholders’ Deed which regulate their respective rights in Holdco.

	 
	 

	 	5    Peabody has, at the request of AM, agreed to grant a guarantee and
indemnity in favour of AM in relation to various obligations of Peabody
Shareholder under the Co-operation and Contribution Agreement and Peabody
Shareholder’s payment obligation upon AM’s exit from Holdco under the
Shareholders’ Deed on the terms of this deed.

	 
	 

	 	6      ArcelorMittal has, at the request of Holdco, agreed to grant a
guarantee and indemnity in favour of Holdco in relation to various obligations
of AM and AM BV2 under the Co-operation and Contribution Agreement and the
Shareholders’ Deed on the terms of this deed.

	 
	This deed witnesses
as follows:
	 	 











 









 
















	1	 	Definitions and interpretation and agreement components
	 
	 
	1.1	 	Deed components
	 
	 	 	This deed includes any schedule.
	 
	1.2	 	Definitions
	 
	 	 	The meanings of the terms used in this deed are set out below, unless the context
otherwise appears or requires.





	 	 	 
	Term	 	Meaning
	Bidco

	 	Peabody Acquisition Co. No. 4 Pty Ltd (ACN 152 004 772).
	 
	 	 
	Business Day

	 	a day on which banks are open for business in Brisbane
(Australia), Paris (France) and St. Louis, Missouri (United States
of America) other than a Saturday, Sunday or public holiday in
Brisbane (Australia), Paris (France) and St. Louis, Missouri
(United States of America) and which is a ‘business day’ as
defined in the official listing rules of ASX.
	 
	 	 
	Duty

	 	any stamp, transaction or registration duty or similar charge
imposed by any Governmental Agency and includes any interest,
fine, penalty, charge or other amount imposed in respect of any of
them, but excludes any Tax.
	 
	 	 
	Claim

	 	any claim, demand, legal proceeding or cause of action including
any claim, demand, legal proceeding or cause of action:
	 
	 

	 	1    based in contract (including breach of any warranty);

	 
	 

	 	2    based in tort (including misrepresentation or
negligence);

	 
	 

	 	3    under common law or equity; or

	 
	 

	 	4    under statute (including the Competition and Consumer
Act 2010 (Cth), or like provisions in any state or territory
legislation),

	 
	 

	 	in any way relating to this deed or the transactions contemplated
by it.
	 
	 	 
	Control

	 	has the meaning given in section 50AA of the Corporations Act.
	 
	 	 
	Co-operation and
Contribution
Agreement

	 	the Co-operation and Contribution Agreement entered into on or
about the date of this deed by Peabody Shareholder, AM, AM BV2,
Holdco and Bidco.
	 
	 	 
	Corporations Act

	 	the Corporations Act 2001 (Cth).
	 
	 	 





page 4









 






			
	 	 	 
	
	 	1 <Definitions and interpretation and agreement components 







	 	 	 
	Term	 	Meaning
	Governmental Agency

	 	any government or governmental, administrative, monetary, fiscal
or judicial body, department, commission, authority, tribunal,
agency or entity in any part of the world.
	 
	 	 
	GST

	 	goods and services tax or similar value added tax levied or
imposed in Australia under the GST Law or otherwise on a supply.
	 
	 	 
	GST Act

	 	the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
	 
	 	 
	GST Law

	 	has the same meaning as in the GST Act.
	 
	 	 
	Loss

	 	losses, liabilities, damages, costs, charges and expenses and
includes Taxes, Duties and tax costs.
	 
	 	 
	Pre-Bid Acceptance
Deed 

	 	the pre-bid acceptance deed entered into on or about the date of
this deed by AM and Bidco. 
	 
	Shareholders’ Deed

	 	the Shareholders’ Deed to be entered into on or about the date of
this deed by Peabody Shareholder, AM, AM BV2, Holdco and Bidco.
	 
	 	 
	Tax

	 	any tax, levy, charge, impost, fee, deduction, goods and services
tax, compulsory loan or withholding, that is assessed, levied,
imposed or collected by any Governmental Agency and includes any
interest, fine, penalty, charge, fee or any other amount imposed
on, or in respect of any of the above but excludes Duty.





1.3 Interpretation





	 	 	In this deed headings and words in bold are inserted for convenience and do not
affect the interpretation of this deed and unless the contrary intention appears:






	 	(a)	 	a reference to this deed or another instrument includes any variation or
replacement of any of them;
	 
	 	(b)	 	a reference to a statute, ordinance, code or other law includes regulations
and other instruments under it and consolidations, amendments, re-enactments or
replacements of any of them;
	 
	 	(c)	 	the singular includes the plural and vice versa;
	 
	 	(d)	 	the word ‘person’ includes a firm, a body corporate, an unincorporated
association or an authority;
	 
	 	(e)	 	a reference to a person includes a reference to the person’s executors,
administrators, successors, substitutes (including persons taking by novation) and
assigns;




page 5









 











			
	 	 	 
	
	 	2 <Guarantees and indemnities







	 	(f)	 	if a period of time is specified and dates from a given day or the day of
an act or event, it is to be calculated exclusive of that day;
	 
	 	(g)	 	a reference to a day is to be interpreted as the period of time commencing
at midnight and ending 24 hours later;
	 
	 	(h)	 	if an act prescribed under this deed to be done by a party on or by a given
day is done after 5.00pm on that day, it is taken to be done on the next day;
	 
	 	(i)	 	if an event must occur on a stipulated day that is not a Business Day then
the stipulated day will be taken to be the next Business Day;
	 
	 	(j)	 	a reference to time is a reference to time in Brisbane, Australia;
	 
	 	(k)	 	a reference to any thing (including any amount) is a reference to the whole
and each part of it and a reference to a group of persons is a reference to any one
or more of them;
	 
	 	(l)	 	a reference to a part, clause, party, attachment, exhibit or schedule is a
reference to a part and clause of, and a party, attachment, exhibit and schedule to,
this deed and a reference to this deed includes any attachment, exhibit and schedule;
	 
	 	(m)	 	a reference to $ is to Australian currency unless denominated otherwise;
and
	 
	 	(n)	 	a term defined in the Corporations Act shall have the same meaning in this
deed.






	1.4	 	Inclusive expressions
	 
	 	 	Specifying anything in this deed after the words ‘including’, ‘includes’ or ‘for
example’ or similar expressions does not limit what else is included unless there is
express wording to the contrary.






	2	 	Guarantees and indemnities
	 
	2.1	 	Peabody guarantee and indemnity






	 	(a)	 	Peabody unconditionally and irrevocably guarantees to AM and AM BV2 the due and
punctual performance of:






	 	(1)	 	Peabody Shareholder’s obligations under the
Co-operation and Contribution Agreement; and
	 
	 	(2)	 	Peabody Shareholder’s obligations under the
Shareholders’ Deed,






	 	 	 	(collectively, the Peabody Relevant Obligations).






	 	(b)	 	If Peabody Shareholder does not comply with any of the Peabody Relevant
Obligations on time and in accordance with the Co-operation and Contribution
Agreement or the Shareholders’ Deed (as applicable), then Peabody agrees to comply
with those obligations on demand from AM and AM BV2. A demand may be made whether or
not AM or AM BV2 has first made demand on Peabody Shareholder.
	 
	 	(c)	 	As a separate and additional liability, Peabody indemnifies AM and AM BV2
against all Loss, actions, proceedings and judgments of any nature, incurred by,
brought, made or recovered against AM or AM BV2 arising from:






	 	(1)	 	any default or delay in the due and punctual
performance by Peabody Shareholder of the Peabody Relevant Obligations; or




page 6









 











			
	 	 	 
	
	 	3 Extent of guarantees and indemnities







	 	(2)	 	an obligation Peabody Shareholder would otherwise have
under the Peabody Relevant Obligations that is found to be void, voidable
or unenforceable; or
	 
	 	(3)	 	an obligation Peabody would otherwise have under
clauses 2.1(a) or 2.1(b) that is found to be void, voidable or
unenforceable.






	 	 	 	Peabody agrees to pay amounts due under this clause 2.1(c) on demand from AM or
AM BV2. AM and AM BV2 do not need to incur expense or make payment before
enforcing this right of indemnity.






	2.2	 	ArcelorMittal guarantee and indemnity






	 	(a)	 	ArcelorMittal unconditionally and irrevocably guarantees to Peabody Shareholder
and Holdco, the due and punctual performance of all of AM’s and AM BV2’s obligations
under the Co-operation and Contribution Agreement, under the Shareholders’ Deed and
under the Pre-Bid Acceptance Deed (collectively the, AM Relevant Obligations).
	 
	 	(b)	 	If AM or AM BV2 does not comply with any of the AM Relevant Obligations on
time and in accordance with the Co-operation and Contribution Agreement and the
Shareholders’ Deed, then ArcelorMittal agrees to comply with those obligations on
demand from Peabody Shareholder or Holdco, as the case may be. A demand may be made
whether or not Peabody Shareholder or Holdco has first made demand on AM or AM BV2.
	 
	 	(c)	 	As a separate and additional liability, ArcelorMittal indemnifies Peabody
Shareholder and Holdco against all Loss, actions, proceedings and judgments of any
nature, incurred by, brought, made or recovered against Peabody Shareholder or Holdco
arising from:






	 	(1)	 	any default or delay in the due and punctual
performance of the AM Relevant Obligations;
	 
	 	(2)	 	an obligation AM or AM BV2 would otherwise have under
the AM Relevant Obligations that is found to be void, voidable or
unenforceable; or
	 
	 	(3)	 	an obligation ArcelorMittal would otherwise have under
clauses 2.2(a) or 2.2(b) that is found to be void, voidable or
unenforceable.






	 	 	 	ArcelorMittal agrees to pay amounts due under this clause 2.1(c) on demand from
Peabody Shareholder or Holdco. Peabody Shareholder and Holdco do not need to
incur expense or make payment before enforcing this right of indemnity.






	3	 	Extent of guarantees and indemnities





 


	 	(a)	 	The liability of Peabody and the rights given to AM and AM BV2 under this deed
are not affected by any act or omission or any other thing which might otherwise
affect them under law or otherwise. For example, those rights and liabilities are not
affected by any act or omission:






	 	(1)	 	varying or replacing in any way and for any reason any
agreement or arrangement under which the obligations guaranteed under
clause 2.1(a) are expressed to be owing; or
	 
	 	(2)	 	releasing Peabody Shareholder or giving Peabody
Shareholder a concession (such as more time to pay).






	 	(b)	 	The liability of ArcelorMittal and the rights given to Peabody Shareholder
and Holdco under this deed are not affected by any act or omission or any other




page 7









 











			
	 	 	 
	
	 	4 Duration








	 	 	 	thing which might otherwise affect them under law or otherwise. For example,
those rights and liabilities are not affected by any act or omission:






	 	(1)	 	varying or replacing in any way and for any reason any
agreement or arrangement under which the obligations guaranteed under
clause 2.2(a) are expressed to be owing; or
	 
	 	(2)	 	releasing AM, AM BV2 or both or giving AM, AM BV2 or
both a concession (such as more time to pay).






	4	 	Duration
	 

	 
	4.1	 	Continuing guarantees and indemnities
	 
	 	 	Subject to clause 4.2, this deed remains in full force and effect for so long as:






	 	(a)	 	Peabody Shareholder has any liability or obligation to AM or AM BV2 under
the Peabody Relevant Obligations; or
	 
	 	(b)	 	AM or AM BV2 has any liability or obligation to Peabody Shareholder or
Holdco under the AM Relevant Obligations,






	 	 	until all of those liabilities or obligations have been fully discharged.
	 
	4.2	 	Term of guarantees and indemnities






	 	(a)	 	Notwithstanding anything else in this deed:






	 	(1)	 	subject to the remainder of this clause 4.2(a), the
liability of Peabody and the rights given to AM and AM BV2 under this deed
shall only remain in full force and effect for so long as Peabody
Shareholder is Controlled by Peabody and shall thereafter terminate and
cease to be of any further force or effect;
	 
	 	(2)	 	if Peabody ceases to Control the Peabody Shareholder
during the Sale Right Period (as defined in the Shareholders’ Deed) in
circumstances where the provisions of clause 4.2(a)(3) do not apply, the
liability of Peabody and the rights given to AM and AM BV2 under this deed,
with respect to the payment obligations in clauses 21.1(d) and 21.1(f) of
the Shareholders’ Deed only, shall remain in full force and effect until:






	 	(A)	 	if a Sale Right Notice (as defined in
the Shareholders’ Deed) has not been delivered before the end of
the Sale Right Period, the end of the Sale Right Period; or
	 
	 	(B)	 	if a Sale Right Notice (as defined in
the Shareholders’ Deed) has been delivered before the end of the
Sale Right Period which has not completed by the end of the Sale
Right Period, the Sale Right Shares Closing Date (as defined in
the Shareholders’ Deed),






	 	 	 	and shall thereafter terminate and cease to be of any further force or
effect; and
	 
	 	(3)	 	if Peabody ceases to Control the Peabody Shareholder
(as defined in the Shareholders’ Deed) as a result of a Peabody Sale (as
defined in the Shareholders’ Deed) and AM is provided with a guarantee in
relation to the obligations under clauses 21.1(d) and 21.1(f) of the
Shareholders’ Deed on terms that are substantially equivalent to the
guarantee given by Peabody in this deed from a person that has a




page 8









 












			
	 	 	 
	
	 	5 No withholdings








	 	 	 	credit rating (as rated by Standard & Poors or Moody’s) that is not
lower than Peabody’s, then the liability of Peabody and the rights
given to AM and AM BV2 under this deed will terminate and will cease
to be of any further force or effect.






	 	(b)	 	Notwithstanding anything else in this deed, the liability of ArcelorMittal
and the rights given to Peabody Shareholder and Holdco under this deed shall only
remain in full force and effect for so long as AM and AM BV2 are Controlled by
ArcelorMittal and shall thereafter terminate and cease to be of any further force or
effect.
	 
	 	(c)	 	This clause 4.2 does not affect any rights that have accrued to a party
before its rights under this deed terminated and ceased to be of any further force or
effect.






	5	 	No withholdings





 


	 	(a)	 	All payments that become due under this deed, must be made free and clear and
without deduction of all present and future withholdings (including taxes, duties,
levies, imposts, deductions and charges of Australia or any other jurisdiction).
	 
	 	(b)	 	If Peabody is compelled by law to deduct any withholding, then in addition
to any payment due under this deed, it must pay to AM or AM BV2 such amount as is
necessary to ensure that the net amount received by AM or AM BV2 after withholding
equals the amount AM or AM BV2 would otherwise been entitled to if not for the
withholding.
	 
	 	(c)	 	If ArcelorMittal is compelled by law to deduct any withholding, then in
addition to any payment due under this deed, it must pay to Peabody Shareholder or
Holdco such amount as is necessary to ensure that the net amount received by Peabody
Shareholder or Holdco after withholding equals the amount Holdco would otherwise been
entitled to if not for the withholding.






	6	 	Currency
	 
	 
	 	 	All moneys that become liable to be paid under this deed must be paid in the currency
in which they are payable under the Shareholders’ Deed and the Co-operation and
Contribution Agreement, as applicable, and free of any commissions and expenses relating
to foreign currency conversion or any other charges or expenses.
	 
	7	 	Suspension of rights
	 
	 
	7.1	 	Peabody’s rights are suspended
	 
	 	 	As long as any obligation is required, or may be required, to be complied with in
connection with this deed, Peabody may not, without AM’s consent:






	 	(a)	 	reduce its liability under this deed by claiming that it, Peabody
Shareholder, Holdco or any other person has a right of set-off or counterclaim
against AM or AM BV2;
	 
	 	(b)	 	claim, or exercise any right to claim, to be entitled (whether by way of
subrogation or otherwise) to the benefit of another guarantee, indemnity, mortgage,
charge or other encumbrance:




page 9









 











			
	 	 	 
	
	 	8 Guarantor’s liability
	 







	 	(1)	 	in connection with the Co-operation and Contribution
Agreement, the Shareholders’ Deed or any other amount payable under this
deed; or
	 
	 	(2)	 	in favour of a person other than AM in connection with
any obligations of, or any other amounts payable, by Peabody Shareholder or
Holdco to, or for the account of, that other person; or






	 	(c)	 	claim an amount in the liquidation, administration or insolvency of Peabody
Shareholder or Holdco or of another guarantor of any of the Peabody Shareholder or
Holdco’s obligations.










7.2 ArcelorMittal’s rights are suspended




As long as any obligation is required, or may be required, to be complied with in
connection with this deed, ArcelorMittal may not, without Holdco’s consent:





	 	(a)	 	except as provided for in clause 3.3(b) of the Co-operation and
Contribution Agreement, reduce its liability under this deed by claiming that it or
AM or AM BV2 or any other person has a right of set-off or counterclaim against
Peabody Shareholder or Holdco;
	 
	 	(b)	 	claim, or exercise any right to claim, to be entitled (whether by way of
subrogation or otherwise) to the benefit of another guarantee, indemnity, mortgage,
charge or other encumbrance:






	 	(1)	 	in connection with the Co-operation and Contribution
Agreement, the Shareholders’ Deed or any other amount payable under this
deed; or
	 
	 	(2)	 	in favour of a person other than Peabody Shareholder or
Holdco in connection with any obligations of, or any other amounts payable,
by AM or AM BV2 to, or for the account of, that other person; or






	 	(c)	 	claim an amount in the liquidation, administration or insolvency of AM or
AM BV2 or of another guarantor of any of AM’s or AM BV2’s obligations.






	8	 	Guarantor’s liability
	 






	 	(a)	 	Peabody’s liability in respect of any Claim shall not exceed Peabody
Shareholder’s liability in respect of that Claim.
	 
	 	(b)	 	ArcelorMittal’s liability in respect of any Claim shall not exceed AM’s
liability or AM BV2’s liability (as the case may be) in respect of that Claim.






	9	 	Duties, costs and expenses
	 
	 
	9.1	 	Duties
	 
	 	 	The parties must pay equally all Duty in respect of the execution, delivery and
performance of this deed, unless otherwise provided for in this deed.





9.2 Parties to pay own other costs





	 	(a)	 	Except as set out in clause 9.1 and unless otherwise provided for in this deed,
each party must pay its own costs and expenses in respect of the negotiation,
preparation, execution, delivery and registration of this deed and any other deed or
document entered into or signed under this deed.




page 10









 











			
	 	 	 
	
	 	10 GST
	 







	 	(b)	 	Any action to be taken by any party in performing its obligations under
this deed must be taken at its own cost and expense unless otherwise provided in this
deed.






	10	 	GST
	 

	 
	10.1	 	Definitions
	 
	 	 	Words used in this clause 10 that have a defined meaning in the GST Law have the same
meaning as in the GST Law unless the context indicates otherwise.
	 
	10.2	 	GST






	 	(a)	 	Unless expressly included, the consideration for any supply under or in
connection with this deed does not include GST.
	 
	 	(b)	 	To the extent that any supply made under or in connection with this deed is
a taxable supply (other than any supply made under another deed that contains a
specific provision dealing with GST), the recipient must pay, in addition to the
consideration provided under this deed for that supply (unless it expressly includes
GST) an amount (additional amount) equal to the amount of that consideration (or its
GST exclusive market value) multiplied by the rate at which GST is imposed in respect
of the supply. The recipient must pay the additional amount at the same time as the
consideration to which it is referable.
	 
	 	(c)	 	Whenever an adjustment event occurs in relation to any taxable supply to
which clause 10.2(b) applies:






	 	(1)	 	the supplier must determine the amount of the GST
component of the consideration payable; and
	 
	 	(2)	 	if the GST component of that consideration differs from
the amount previously paid, the amount of the difference must be paid by,
refunded to or credited to the recipient, as applicable.






	10.3	 	Tax invoices
	 
	 	 	The supplier must issue a tax invoice to the recipient of a supply to which clause
10.2 applies no later than 10 days following payment of the GST inclusive consideration
for that supply under that clause.
	 
	10.4	 	Reimbursements
	 
	 	 	If either party is entitled under this deed to be reimbursed or indemnified by the
other party for a cost or expense incurred in connection with this deed, the reimbursement
or indemnity payment must not include any GST component of the cost or expense to the
extent that the cost or expense is the consideration for a creditable acquisition made by
the party being reimbursed or indemnified, or by its representative member.
	 
	11	 	General
	 
	 
	11.1	 	Notices






	 	(a)	 	Any notice or other communication (including any request, demand, consent or
approval) to or by a party to this deed must be in legible writing and in English




page 11









 











			
	 	 	 
	
	 	11 General







	 	 	 	addressed as shown below (or as specified to the sender by any party by notice):





	 	 	 	 	 	 	 
	Party	 	Address	 	Attention	 	Facsimile
	Peabody

	 	701 Market Street, St.

Louis, Missouri 63101

United States of America
	 	Chief Legal Officer
	 	+1 314 342 3419
	 
	 	 	 	 	 	 
	 

	 	 	 	Carole Whittall

with a copy to the London
office of AM:	 	 
	ArcelorMittal

	 	19 avenue de la Liberté,

L-2930 Luxembourg City,

Luxembourg
	 	Attention: Carole Whittall



7th Floor Berkeley Square

House, Berkeley Square

London W1J 6AD

United Kingdom
	 	+44 20 7629 5351
	 
	 	 	 	 	 	 
	Peabody Shareholder

	 	Level 13, BOQ Centre, 259

Queen Street, Brisbane,

Queensland 4000

Australia
	 	The Company Secretary
	 	+61 7 3225 5555
	 
	 	 	 	 	 	 
	Holdco

	 	Level 13, BOQ Centre, 259

Queen Street, Brisbane,

Queensland 4000

Australia
	 	The Company Secretary
	 	+61 7 3225 5555
	 
	 	 	 	 	 	 
	 

	 	 	 	Carole Whittall


with a copy to the London
office of AM:	 	 
	AM

	 	Eemhavenweg 70, 3089

KH Rotterdam

Netherlands
	 	Attention: Carole Whittall



Address: 

7th Floor

Berkeley Square House,

Berkeley Square, London

W1J 6AD
	 	+44 20 7629 5351
	 
	 	 	 	 	 	 
	 

	 	 	 	Carole Whittall


with a copy to the London
office of AM:	 	 
	 

	 	 	 	Attention: Carole Whittall



Address:	 	 
	AM BV2

	 	Eemhavenweg 70, 3089

KH Rotterdam

Netherlands
	 	7th Floor Berkeley Square

House, Berkeley Square,

London W1J 6AD
	 	+44 20 7629 5351






page 12









 






			
	 	 	 
	
	 	11 General







	 	 	 	If the sender is a company, the notice or communication must be signed by
an officer or under the common seal of the sender.
	 
	 	(b)	 	A notice or communication given in accordance with clause 11.1(a) can be
relied on by the addressee and the addressee is not liable to any other person for
any consequences of that reliance if the addressee believes it to be genuine, correct
and authorised by the sender.
	 
	 	(c)	 	Any notice or other communication to or by a party to this deed is regarded
as being given by the sender and received by the addressee:






	 	(1)	 	if by delivery in person, when delivered to the
addressee;
	 
	 	(2)	 	if by registered mail (with acknowledgement of receipt)
within Australia, 4 Business Days from and including the date of postage;
	 
	 	(3)	 	if by registered mail (with acknowledgement of receipt)
to or from a place outside Australia, 7 Business Days from and including
the date of postage;
	 
	 	(4)	 	if by facsimile transmission, when a facsimile
confirmation receipt is received indicating successful delivery,






	 	 	 	but if the delivery or receipt is on a day that is not a Business Day or is
after 5.00pm (addressee’s time) it is regarded as received at 9.00am on the
following Business Day.
	 
	 	(d)	 	A facsimile transmission is regarded as legible unless the addressee
telephones the sender within 2 hours after the transmission is received or regarded
as received under clause 11.1(a) and informs the sender that it is not legible.
	 
	 	(e)	 	In this clause 11.1, reference to an addressee includes a reference to an
addressee’s officers, agents or employees.






	11.2	 	Governing law and jurisdiction






	 	(a)	 	This deed is governed by the laws of New South Wales.
	 
	 	(b)	 	Each party irrevocably submits to the non-exclusive jurisdiction of the
courts of New South Wales.






	11.3	 	Service of process






	 	(a)	 	Without preventing any other mode of service, any document in an action
(including any writ of summons or other originating process or any third or other
party notice) may be served on any party by being delivered to or left for that party
at its address for service of notices under clause 11.1.
	 
	 	(b)	 	ArcelorMittal irrevocably appoints Mallesons Stephen Jaques (attention:
David Friedlander / Paul Schroder) of Level 61, Governor Phillip Tower, 1 Farrer
Place, Sydney New South Wales 2000, as its agent for the service of process in
Australia in relation to any matter arising out of this deed. If Mallesons Stephen
Jaques ceases to be able to act as such or have an address in Australia,
ArcelorMittal agrees to appoint a new process agent in Australia and deliver to the
other parties within 2 Business Days a copy of a written acceptance of appointment by
the process agent, upon receipt of which the new appointment becomes effective for
the purpose of this deed. ArcelorMittal must inform the other parties in writing of
any change in the address of its process agent within 2 Business Days of the change.
	 
	 	(c)	 	Peabody irrevocably appoints Freehills (attention: Tony Damian / Andrew
Rich) of Level 32, MLC Centre, 19 Martin Place, Sydney New South Wales 2000, as its
agent for the service of process in Australia in relation to any matter arising




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	 	11 General







	 	 	 	out of this deed. If Freehills ceases to be able to act as such or have an
address in Australia, Peabody agrees to appoint a new process agent in Australia
and deliver to the other parties within 2 Business Days a copy of a written
acceptance of appointment by the process agent, upon receipt of which the new
appointment becomes effective for the purpose of this deed. Peabody must inform
the other parties in writing of any change in the address of its process agent
within 2 Business Days of the change.






	11.4	 	Waivers and variation






	 	(a)	 	A provision of, or a right, discretion or authority created under, this deed may
not be:






	 	(1)	 	waived except in writing signed by the party granting
the waiver; and
	 
	 	(2)	 	varied except in writing signed by the parties,






	 	 	 	except to the extent this deed expressly provides otherwise.
	 
	 	(b)	 	A failure or delay in exercise, or partial exercise, of a power, right,
authority, discretion or remedy arising from a breach of, or default under this deed
does not result in a waiver of that right, power, authority, discretion or remedy.






	11.5	 	Assignment






	 	(a)	 	Neither AM nor AM BV2 may assign the benefit of this deed without the written
consent of Peabody.
	 
	 	(b)	 	Neither Peabody Shareholder nor Holdco may assign the benefit of this deed
without the written consent of ArcelorMittal.
	 
	 	(c)	 	Peabody may not transfer or delegate its obligations under this deed
without the written consent of AM and AM BV2.
	 
	 	(d)	 	ArcelorMittal may not transfer or delegate its obligations under this deed
without the written consent of Peabody Shareholder and Holdco.






	11.6	 	Further assurances
	 
	 	 	Each party must do all things and execute all further documents reasonably necessary
to give full effect to this deed and the transactions contemplated by it.
	 
	11.7	 	Approvals and consent
	 
	 	 	If the doing of any act, matter or thing under this deed is dependent on the approval
or consent of a party, that party may give conditionally or unconditionally or withhold
its approval or consent in its absolute discretion, unless this deed expressly provides
otherwise.
	 
	11.8	 	Remedies cumulative
	 
	 	 	Except as provided in this deed and permitted by law, the rights, powers and remedies
provided in this deed are cumulative with and not exclusive to the rights, powers or
remedies provided by law independently of this deed.
	 
	11.9	 	Counterparts
	 
	 	 	This deed may be executed in any number of counterparts which together will
constitute one instrument. A party may execute this deed by signing any counterpart.




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	 	11 General







	11.10	 	Prohibition and enforceability
	 
	 	 	Any provision of, or the application of any provision of, in this deed that is void,
illegal or unenforceable in any jurisdiction is to be read down for the purpose of that
jurisdiction, if possible, so as to be valid and enforceable, and otherwise shall be
severed to the extent of the invalidity, illegality or unenforceability, without affecting
the remaining provisions of this deed or affecting the validity or enforceability of that
provision in any other jurisdiction.
	 
	11.11	 	No merger
	 
	 	 	The rights and obligations of the parties under this deed do not merge on or
adversely affect, and is not adversely affected by, any of the following:






	 	(a)	 	completion of any transaction contemplated by this deed;
	 
	 	(b)	 	any other guarantee, indemnity, mortgage, charge or other encumbrance, or
other right or remedy to which a party is entitled; or
	 
	 	(c)	 	a judgment which a party obtains against another party or any other person
in connection with this deed.






	 	 	A party may still exercise its rights under this deed as well as under the judgment,
mortgage, charge or other encumbrance or the right or remedy described above.
	 
	11.12	 	Entire agreement
	 
	 	 	This deed embodies the entire agreement between the parties and supersede any prior
negotiation, conduct, arrangement, understanding or agreement, express or implied, with
respect to the subject matter of this deed.
	 
	11.13	 	Contra proferentem excluded
	 
	 	 	No term or condition of this deed will be construed adversely to a party solely on
the ground that the party was responsible for the preparation of this deed or that
provision.
	 
	11.14	 	Attorneys
	 
	 	 	If this deed is executed by attorneys, each of the attorneys executing this deed states that
the attorney has no notice of the revocation of the power of attorney appointing that attorney.






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Signing page




	 	 	 	 	 

	 

	 	Executed as a deed
 

	 	 
	 
	 	 	 	 
	 

	 	Signed, sealed and delivered by	 	 
	 

	 	Peabody Energy Corporation	 	 
	 

	 	by its Authorized Officer	 	 
	 
	 	 	 	 
	sign here ►

	 	/s/ Robert L. Reilly
 

	 	 
	 

	 	Authorized Officer	 	 
	 
	 	 	 	 
	print name

	 	Robert L. Reilly
 

	 	 
	 
	 	 	 	 
	 

	 	in the presence of	 	 
	 
	 	 	 	 
	sign here ►

	 	/s/ Bryan L. Sutter
 

	 	 
	 

	 	Witness	 	 
	 
	 	 	 	 
	print name

	 	Bryan L. Sutter
 

	 	 
	 
	 	 	 	 
	 

	 	Signed, sealed and delivered by	 	 
	 

	 	ArcelorMittal S.A.	 	 
	 

	 	by its attorney	 	 
	 
	 	 	 	 
	sign here ►

	 	/s/ Peter Kukielski
 

	 	 
	 

	 	Attorney	 	 
	 
	 	 	 	 
	print name

	 	Peter Kukielski
 

	 	 
	 
	 	 	 	 
	 

	 	in the presence of	 	 
	 
	 	 	 	 
	sign here ►

	 	/s/ Sudhir Mahesharari
 

	 	 
	 

	 	Witness	 	 
	 
	 	 	 	 
	print name

	 	Sudhir Mahesharari
 

	 	 






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Signing page





	 	 	 	 	 

	 

	 	Signed, sealed and delivered by	 	 
	 

	 	ArcelorMittal Netherlands B.V.	 	 
	 

	 	by its attorney	 	 
	 
	 	 	 	 
	sign here ►

	 	/s/ Carole Whittall
 

	 	 
	 

	 	Attorney	 	 
	 
	 	 	 	 
	print name

	 	Carole Whittall
 

	 	 
	 
	 	 	 	 
	 

	 	in the presence of	 	 
	 
	 	 	 	 
	sign here ►

	 	/s/ Anne Van Ysendyck
 

	 	 
	 

	 	Witness	 	 
	 
	 	 	 	 
	print name

	 	Anne Van Ysendyck
 

	 	 
	 
	 	 	 	 
	 

	 	Signed, sealed and delivered by	 	 
	 

	 	ArcelorMittal Mining Australasia B.V.	 	 
	 

	 	by its attorney	 	 
	 
	 	 	 	 
	sign here ►

	 	/s/ Carole Whittall
 

	 	 
	 

	 	Attorney	 	 
	 
	 	 	 	 
	print name

	 	Carole Whittall
 

	 	 
	 
	 	 	 	 
	 

	 	in the presence of	 	 
	 
	 	 	 	 
	sign here ►

	 	/s/ Anne Van Ysendyck
 

	 	 
	 

	 	Witness	 	 
	 
	 	 	 	 
	print name

	 	Anne Van Ysendyck
 

	 	 






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Signing page




	 	 	 	 	 

	 

	 	Signed, sealed and delivered by	 	 
	 

	 	Peabody Acquisition Co. No. 3 Pty Ltd in accordance	 	 
	 

	 	with section 127 of the Corporations Act 2001 (Cth)	 	 
	 

	 	by	 	 
	 
	 	 	 	 
	sign here ►

	 	/s/ Murray Hundleby
 

	 	 
	 

	 	Company Secretary	 	 
	 	 	 	 	 
	print name

	 	Murray Hundleby
 

	 	 
	 
	 	 	 	 
	sign here ►

	 	/s/ Julian Derek Thornton
 

	 	 
	 

	 	Director	 	 
	 
	 	 	 	 
	print name

	 	Julian Derek Thornton	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Signed, sealed and delivered by	 	 
	 

	 	Peabody Acquisition Co. No. 2 Pty Ltd in accordance	 	 
	 

	 	with section 127 of the Corporations Act 2001 (Cth)	 	 
	 

	 	by	 	 
	 
	 	 	 	 
	sign here ►

	 	/s/ Murray Hundleby
 

	 	 
	 

	 	Company Secretary	 	 
	 
	 	 	 	 
	print name

	 	Murray Hundleby
 

	 	 
	 	 	 	 	 
	 
	 	 	 	 
	sign here ►

	 	/s/ Julian Derek Thornton
 

	 	 
	 

	 	Director	 	 
	 
	 	 	 	 
	print name

	 	Julian Derek Thornton
 

	 	 






page 18