exv10w42



 




Exhibit 10.42






AMENDMENT
NO. 1 TO THE

SEPARATION AGREEMENT, PLAN OF REORGANIZATION AND DISTRIBUTION




     AMENDMENT
NO. 1, dated as of November 1, 2007 (this “Amendment”), to the Separation
Agreement, Plan of Reorganization and Distribution, dated as of October 22, 2007 (the “Original Agreement”), between Peabody Energy Corporation, a Delaware corporation, and Patriot Coal
Corporation, a Delaware corporation. Capitalized terms used, but not defined, herein shall have the
meanings ascribed thereto in the Original Agreement.



W
I T N E S S E T H:




     WHEREAS, the Parties are parties to the Original Agreement;



     WHEREAS, the Parties desire to amend the Original Agreement as set forth herein; and



     WHEREAS, pursuant to Section 15.03 thereof, the Original Agreement may be amended by an
instrument in writing executed by the Parties.



     NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration,
receipt of which is hereby acknowledged, the parties hereto agree as follows:



     Section 1.
Amendment to the Original Agreement.
Section 5.01(j) of the Original Agreement
is hereby amended and restated in its entirety to read as follows:




     (j) Reference is made to the litigation captioned Consolidated Coal Co. v.
United States, No. 01-254C, pending in the United States Court of Federal Claims
(the “Federal Reclamation Case”). For the period through and including the Distribution
Date, PEC shall (i) be responsible for litigating on behalf of both the PEC Group and
the Patriot Group claims relating to the Federal Reclamation Case in respect of
reclamation fees paid through and including the Distribution Date, (ii) receive and
have the benefit of all of the proceeds from the Federal Reclamation Case relating to
claims for refunds of reclamation fees paid through and including the Distribution
Date, including interest thereon, and (iii) be responsible for the payment of
attorneys’ fees and costs in connection with the Federal Reclamation Case relating to
claims for refunds of reclamation fees paid through and including the Distribution
Date. For refund claims which are the subject of the Federal Reclamation Case and
which relate to reclamation payments made after the Distribution Date, (x) PEC shall
have the responsibility for litigating any such claims by the members of the PEC Group
(including responsibility for related attorney’s fees and costs) and shall receive and
have the benefit of proceeds from the Federal Reclamation Case in respect of such
payments made by any member of the PEC Group, and (y) Patriot shall have the
responsibility for litigating any such claims by the members of the Patriot Group
(including responsibility for related attorney’s fees and costs) and shall receive and
have the benefit of proceeds from the Federal Reclamation Case in respect of such
payments made by any member of the Patriot Group.



     Section 2.
Governing Law; Jurisdiction. This Amendment 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. Each of the parties hereto (a) consents to submit itself to the personal



 









 






jurisdiction of the courts of the State of Missouri or any federal court with subject matter
jurisdiction located in the City of St. Louis (and any appeals court therefrom) in the event any dispute arises
out of this Amendment, (b) agrees that it will not attempt to deny or defeat such personal
jurisdiction by motion or other request for leave from any such court, and (c) agrees that it will
not bring any action relating to this Amendment or any transaction contemplated hereby or thereby
in any court other than such courts.



     Section 3. Effectiveness. This Amendment shall be effective as of the date hereof.



     Section 4. No Other Amendments. Except as expressly amended hereby, the provisions of the
Original Agreement are and shall remain in full force and effect.



[Signatures appear on following page.]




 









 




     IN WITNESS WHEREOF, the parties hereto have executed and delivered this Amendment 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/
Joseph W. Bean
 	 
	 	 	Name:  	Joseph W. Bean 	 
	 	 	Title:  	Senior Vice President & General Counsel 	 
	 



[Amendment
No. 1 to Separation Agreement]