exv10w3



 





Exhibit 10.3




AMENDMENT NO. 1 TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT




Dated as of September 27, 2006




     This AMENDMENT NO. 1 TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment No.
1”) is made by and among PEABODY ENERGY CORPORATION, a Delaware corporation (the
“Borrower”), the Lenders (as defined below) and BANK OF AMERICA, N.A., as Administrative
Agent (the “Administrative Agent”).



PRELIMINARY STATEMENTS:




     1. The Borrower, each lender from time to time party thereto (collectively, the
“Lenders” and individually, a “Lender”) and the Administrative Agent have entered
into that certain Third Amended and Restated Credit Agreement, dated as of September 15, 2006 (the
“Credit Agreement”); capitalized terms used and not otherwise defined herein have the
meanings assigned to such terms in the Credit Agreement.



     2. The Borrower has requested that the Lenders amend the Credit Agreement to permit the
Borrower to acquire the shares of Excel by way of a tender offer.



     3. Subject to the terms and conditions set forth below, and in consideration of certain
agreements of the Borrower and other Loan Parties set forth herein and in the accompanying Consent
of Loan Parties, the requisite Lenders are willing to agree to this Amendment No. 1.



     NOW, THEREFORE, in consideration of the premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:



          SECTION 1 Amendments to the Credit Agreement. Upon the satisfaction of the applicable
conditions precedent set forth in Section 2, the Credit Agreement is hereby amended as follows:




     (a) The following new section heading is hereby added to the Table of Contents following
Section 5.17 in the Table of Contents,:



     “Section 5.18. Use of Proceeds.”



 









 





     (b) The following new definitions are hereby added to Section 1.01 of the Credit
Agreement:



     ““Excel Board Control” has the meaning specified in the definition of Consolidated
EBITDA.”



     ““Tender Offer” means a takeover offer pursuant to the laws of Australia for all of
the outstanding ordinary shares of Excel and any follow up arrangements to acquire any remaining
outstanding ordinary shares of Excel pursuant to lawful means.”



     (c) The following definitions to Section 1.01 of the Credit Agreement are hereby
amended in its entirety to read:



     ““Acquisition” means the proposed acquisition of Excel through either (i) a scheme of
arrangement to acquire all of the outstanding ordinary shares of Excel on the Acquisition Effective
Date and the payment of fees and expenses related thereto, or (ii) the Tender Offer and the payment
of fees and expenses related thereto.”



     ““Acquisition Effective Date” means either (i) the date on which the Scheme is
implemented, currently expected to be on or before December 31, 2006, as such date may be postponed
by the parties to the Merger Agreement, and in no event later than January 31, 2007, or (ii) each
date on which the Tender Offer is consummated, and in no event later than January 31, 2007.”



     ““Term Loan Borrowing” means (i) a borrowing consisting of simultaneous Term Loans of
the same Type and (ii) one or more borrowings of Delayed Draw Term Loans of the same Type, and, in
the case of Eurocurrency Rate Loans, having the same Interest Period made by each of the Term Loan
Lenders pursuant to Section 2.01(a).”



     (d) The definition of “Consolidated EBITDA” in Section 1.01 of the Credit
Agreement shall be amended by deleting the period at the end and adding the following at the end of
such definition:



     “; provided that, in calculating Consolidated EBITDA of the Borrower and its
Subsidiaries for any period after the consummation of the Acquisition: (i) if the Borrower and its
Subsidiaries own greater than 50% but less than all of the outstanding ordinary shares of Excel and
a majority of the members of the board of directors or equivalent governing body of Excel are
individuals whose election or nomination to such board of directors or other governing body was
approved by the Borrower (“Excel Board Control”), the portion of Consolidated EBITDA
attributable to Excel and its Subsidiaries shall be limited to a percentage of the Consolidated
EBITDA equal to the percentage of outstanding ordinary shares of Excel then owned by the Borrower
and its Restricted Subsidiaries, and (ii) if the Borrower and its Restricted Subsidiaries own less
than a majority of the common stock of Excel or the Borrower does not have Excel Board Control, the
calculation of Consolidated EBITDA (A) shall exclude any amounts attributable to Excel and its
Subsidiaries, and (B) shall not include any earnings on the Borrower’s equity investment in Excel
unless the Borrower receives cash distributions of such equity earnings in such period.”



2









 





     (e) The first subsection (ii) of Section 2.01(a) shall be amended in its entirety to
read:



     “(ii) each Lender holding a Delayed Draw Term Loan Commitment severally agrees to make, in
Dollars during the Delayed Draw Term Loan Commitment Period, one or more delayed draw term loans,
each of which shall be a Term Loan hereunder (each a “Delayed Draw Term Loan”), to the
Borrower in an aggregate principal amount not to exceed such Term Loan Lender’s Applicable
Percentage of the Delayed Draw Term Loan Commitment;”



     (f) The first paragraph to Section 4.02 of the Credit Agreement is hereby amended in
its entirety to read:



     “The obligation of each Lender to honor any Request for Credit Extension with respect to the
Delayed Draw Term Loan or with respect to the Revolving Credit Facility, the proceeds of which will
be used to finance the Acquisition is subject to the Effective Date having occurred and the
following conditions precedent, which shall be either (i) in the case of the Scheme, conclusively
tested no later than 8:00 a.m., Sydney time, on the Second Court Date (as defined in the Merger
Agreement) for the Scheme (other than conditions which require court approval for the Scheme and
assuming the effectiveness of the Scheme substantially contemporaneously with such Second Court
Date), or (ii) in the case of any Request for Credit Extension to finance the Tender Offer, be
tested on the date of the applicable requested Borrowing:”



     (g) Section 4.02(a) of the Credit Agreement is hereby amended in its entirety to read:



     “(A) In the case of the Scheme, there shall not have occurred either (1) one or more changes,
events, occurrences or matters which has had or is likely to have the effect of a diminution in the
(i) consolidated net assets of Excel and all its Subsidiaries, taken as a whole (calculated on the
basis of the International Financial Reporting Standards as adopted in Australia
(“AIFRS”)), of at least A$50,000,000, (ii) consolidated annual net profit after tax
(calculated on the basis of AIFRS), in any financial year after the one ending June 30, 2006 of
Excel and all its Subsidiaries, taken as a whole, of at least A$12,500,000, or (iii) other than as
a consequence of changes in coal prices or currency exchange rate changes or (2) an event takes
place or is reasonably likely to take place which would prevent Excel from operating its existing
mines, completing its development activities or entering into arrangements in relation to the Wambo
Underground, Wilpinjong or Millenium projects (as defined in the Merger Agreement) in the manner
currently contemplated by Excel and such event is sufficiently adverse to the financial position,
profitability or prospects of Excel so as to affect the commercial viability of the Acquisition for
the Borrower in a material respect, having regard to the consideration to be paid in the Scheme, or
(B) in the case of the Tender Offer, all conditions precedent to the Tender Offer have either been
satisfied or waived with the consent of the Administrative Agent.”



     (h) The first 2 words in Section 4.02(b) is hereby deleted and replaced with the
following:



     “In the case of the Scheme, the Scheme”




     (i) Section 4.02(c) of the Credit Agreement is hereby amended in its entirety to read:



     “No Default shall exist, or would result from such proposed Credit Extension or the
application of the proceeds thereof, by reason of (i) in the case of the Scheme, any breach of any



3









 







representation or warranty which also constitutes a breach of a representation and warranty in
the Merger Agreement that is material to the interests of the Lenders and would result in the
Borrower’s (or an applicable affiliate thereof) having a right to terminate its obligations
thereunder, (ii) in the case of the Scheme or the Tender Offer, any breach of the representations
and warranties contained in Section 5.01(a)(i) and (b)(ii), 5.02(a),
5.04 or 5.14 (it being understood that the funding of the Delayed Draw Term Loan
and any Borrowing of Revolving Credit Loans to fund the Acquisition shall not constitute a waiver
by the Lenders of any default or event of default that may exist under this Agreement at the time
of such funding), and (iii) in the case of the Tender Offer, the occurrence of any event described
in Section 8.01(f);”



     (j) The following Section 5.18 is hereby added in its entirety following Section
5.17:



     “Section 5.18. Use of Proceeds. The Borrower will use the proceeds of the Loans solely as
provided for in Section 6.11.”



     (k) Section 6.11 is hereby amended in its entirety to read:



     “On the Effective Date, the Term Loan Facility and the Revolving Credit Facility shall be
available to (i) refinance and continue indebtedness under the Existing Credit Agreement, and to
pay fees and expenses related to such refinancing and continuation, and (ii) for fees and expenses
related to the Acquisition. After the Effective Date, (i) the Revolving Credit Facility shall be
available for only working capital, capital expenditures, and other lawful corporate purposes,
including to finance the Acquisition, and (ii) the Delayed Draw Term Loan will be available only to
finance the Acquisition (A) on or about the Acquisition Effective Date if the Borrower consummates
the Acquisition pursuant to the Scheme, or (B) in multiple draws during the period from the
Effective Date through the Acquisition Effective Date if the Borrower completes the Acquisition
pursuant to the Tender Offer; provided that, if the Borrower proceeds to consummate
the Acquisition pursuant to (a) the Scheme, the Borrower agrees that (i) if the Acquisition is not
consummated within thirty (30) days of the date on which the Delayed Draw Term Loan is made to the
Borrower to fund the Scheme, the proceeds of such Delayed Draw Term Loan will be returned
immediately to the Lenders and used to prepay the Term Loan and (ii) such agreement will be
reflected to the reasonable satisfaction of the Administrative Agent in a written escrow or similar
arrangement governing the proceeds of the Delayed Draw Term Loan for the period from the date of
making of such Loan until such proceeds are used to consummate the Acquisition or returned to the
Lenders as specified in clause (i) of this sentence (whichever occurs first), or (b) the Tender
Offer, if prior to the time the Borrower and its Restricted Subsidiaries own all of the outstanding
ordinary shares of Excel, the Borrower determines not to consummate the Acquisition and,
subsequently, sells or otherwise disposes of any or all of such outstanding ordinary shares of
Excel, the Borrower will prepay the Term Loans with the proceeds of such sale or disposition up to
the amount of the Delayed Draw Term Loans that were used to acquire any such outstanding ordinary
shares of Excel.”



     (l) The following new Section 7.01(t) shall be added in its entirety following
Section 7.01(s) to read:



     “(t) Liens in favor of an escrow agent arising under an escrow arrangement incurred in
connection with the issuance of notes with respect of the proceeds of such notes and anticipated
interest expenses with respect to such notes.”



4









 





     (m) Section 7.02(l) is hereby amended in its entirety to read:



     “Investments by the Borrower or any Restricted Subsidiary in an aggregate amount not in excess
of 15.0% of Tangible Assets of the Borrower and Restricted Subsidiaries.”



     (n) Section 7.03(k) is hereby amended by deleting the period at the end and adding the
following to the end:



     “; provided that, unless the Borrower and its Restricted Subsidiaries own greater than
50% of the outstanding ordinary shares of Excel and the Borrower has Excel Board Control, all
Indebtedness of Excel and its Subsidiaries shall be Non-Recourse Debt.”



          SECTION 2 Conditions to Effectiveness of Amendment. The effectiveness of the
amendments contained in Section 1 of this Amendment No. 1 is conditioned upon satisfaction of the
following conditions precedent:




     (a) the Administrative Agent shall have (i) received counterparts of this Amendment No. 1
signed by the Borrower and the requisite Lenders and counterparts of the Consent of Loan Parties
attached hereto (the “Consent”) signed by the Loan Parties and (ii) acknowledged this
Amendment No. 1 in writing;



     (b) each of the representations and warranties in Section 3 below shall be true and correct in
all material respects as of the date on which this Amendment No. 1 becomes effective;



     (c) the Administrative Agent shall have received the executed legal opinion of (x) Simpson,
Thacher & Bartlett LLP, counsel to the Borrower and special New York counsel to the other Loan
Parties, and (y) Joseph Bean, Esq., special Missouri counsel to the Borrower and in-house counsel
to the other Loan Parties; and



     (d) the Administrative Agent shall have received such other documents, instruments and
opinions as it shall have reasonably requested.



          SECTION 3 Representations and Warranties. The Borrower represents and warrants to the
Administrative Agent and the Lenders as follows:




     (a) Authority. Each of the Loan Parties has the requisite corporate, limited
liability or other such power and authority to execute and deliver this Amendment No. 1 and the
Consent, as applicable, and to perform its obligations hereunder and under the Loan Documents (as
modified hereby). The execution, delivery and performance by the Borrower and each other Loan
Party of this Amendment No. 1, the Consent (as applicable), the Loan Documents (as modified hereby)
and the transactions contemplated hereby and thereby have been duly approved by all necessary
corporate action of such Person and no other corporate proceedings on the part of such Person are
necessary to consummate such transactions.



5









 





     (b) No Legal Bar. The execution and delivery of this Amendment No. 1 and of the
Consent by each Loan Party party thereto, and the performance of the Credit Agreement and each
other Loan Document, as amended hereby, by the Borrower and each other Loan Party party thereto
will not violate any Requirement of Law or any Contractual Obligation applicable to or binding on
the Borrower, any Restricted Subsidiary or any of their respective properties or assets, except to
the extent that such violation could not reasonably be expected to have a Material Adverse Effect.



     (c) Enforceability. This Amendment No. 1 has been duly executed and delivered by the
Borrower. The Consent has been duly executed and delivered by each Loan Party. This Amendment No.
1, the Consent and each Loan Document (as modified hereby) is the legal, valid and binding
obligation of such Loan Party, enforceable against each Loan Party that is party thereto in
accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other Laws relating to or affecting creditors’ rights generally,
general principles of equity, regardless of whether considered in a proceeding in equity or at law
and an implied covenant of good faith and fair dealing.



     (d) Representations and Warranties. The representations and warranties contained in
each Loan Document (other than any such representations and warranties that, by their terms, are
specifically made as of a date other than the date hereof) are true and correct in all material
respects on and as of the date hereof as though made on and as of the date hereof.



     (e) No Default. Both immediately before and after giving effect to the amendments set
forth in Section 1 hereof no event has occurred and is continuing that constitutes a Default or
Event of Default.



          SECTION 4 Reference to and Effect on Credit Agreement.




     (a) Upon and after the effectiveness of this Amendment No. 1, each reference in the Credit
Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the
Credit Agreement, and each reference in the other Loan Documents to “the Credit Agreement”,
“thereunder”, “thereof” or words of like import referring to the Credit Agreement, shall mean and
be a reference to the Credit Agreement as modified hereby.



     (b) Except as specifically modified above, the Credit Agreement and the other Loan Documents
are and shall continue to be in full force and effect and are hereby in all respects ratified and
confirmed.



     (c) The execution, delivery and effectiveness of this Amendment No. 1 shall not operate as a
waiver of any right, power or remedy of the Administrative Agent or any Lender under any of the
Loan Documents, nor, except as expressly provided herein, constitute a waiver or amendment of any
provision of any of the Loan Documents.



          SECTION 5 Counterparts. This Amendment No. 1 may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement. Delivery of an executed counterpart of a signature page to
this Amendment No. 1 by facsimile shall be effective as delivery of a manually executed counterpart
of this Amendment No. 1 or such Consent.




6









 








          SECTION 6 Severability. Any provision of this Amendment No. 1 that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.




          SECTION 7 Governing Law. This Amendment No. 1 shall be governed by, and construed in
accordance with, the laws of the State of New York.




[Signature Page to Follow]




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     IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to be executed by
their respective officers thereunto duly authorized, as of the date first written above.



	 	 	 	 	 
	 	 	PEABODY ENERGY CORPORATION,
	 	 	a Delaware corporation
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Walter L. Hawkins, Jr.
	 

	 	 	 	 
	 

	 	 	 	Name: Walter L. Hawkins, Jr.
	 

	 	 	 	Title: Vice President and Treasurer






 









 






	 	 	 	 	 
	 	 	NATIONAL CITY BANK, as Lender
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Eric Hartman
	 

	 	 	 	 
	 

	 	 	 	Name: Eric Hartman
	 

	 	 	 	Title: Senior Vice President






 









 






	 	 	 	 	 
	 	 	CITIGROUP, as Lender
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Stuart G. Miller
	 

	 	 	 	 
	 

	 	 	 	Name: Stuart G. Miller
	 

	 	 	 	Title: Managing Director






 









 






	 	 	 	 	 
	 	 	LEHMAN COMMERCIAL PAPER INC., as Lender
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Craig Malloy
	 

	 	 	 	 
	 

	 	 	 	Name: Craig Malloy
	 

	 	 	 	Title: Authorized Signatory






 









 






	 	 	 	 	 
	 	 	PNC BANK NATIONAL ASSOCIATION, as Lender
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Dale Stein
	 

	 	 	 	 
	 

	 	 	 	Name: Dale Stein
	 

	 	 	 	Title: Senior Vice President






 









 






	 	 	 	 	 
	 	 	COMERICA BANK, as Lender
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Mark Leveille
	 

	 	 	 	 
	 

	 	 	 	Name: Mark Leveille
	 

	 	 	 	Title: AVP






 









 






	 	 	 	 	 
	 	 	JPMORGAN CHASE BANK, N.A., as Lender
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Stacey Haimes
	 

	 	 	 	 
	 

	 	 	 	Name: Stacey Haimes
	 

	 	 	 	Title: Vice President






 









 






	 	 	 	 	 
	 	 	CREDIT SUISSE, Cayman Islands Branch as Lender
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Doreen Barr
	 

	 	 	 	 
	 

	 	 	 	Name: Doreen Barr
	 

	 	 	 	Title: Vice President
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Shaheen Malik
	 

	 	 	 	 
	 

	 	 	 	Name: Shaheen Malik
	 

	 	 	 	Title: Associate






 









 






	 	 	 	 	 
	 	 	COMMONWEALTH BANK OF AUSTRALIA, as Lender
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Jeff Heazlewood
	 

	 	 	 	 
	 

	 	 	 	Name: Jeff Heazlewood
	 

	 	 	 	Title: Relationship Executive






 









 






	 	 	 	 	 
	 	 	BANK OF
TOKYO-MITSUBISHI UFJ TRUST COMPANY, as Lender
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Charles Stewart
	 

	 	 	 	 
	 

	 	 	 	Name: Charles Stewart
	 

	 	 	 	Title: Vice President






 









 






	 	 	 	 	 
	 	 	BMO CAPITAL MARKETS FINANCING, INC., as Lender
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Cahal Carmody
	 

	 	 	 	 
	 

	 	 	 	Name: Cahal Carmody
	 

	 	 	 	Title: Vice President






 









 






	 	 	 	 	 
	 	 	The Governor and
Company of the BANK OF IRELAND, as Lender
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Deirdre Reddan
	 

	 	 	 	 
	 

	 	 	 	Name: Deirdre Reddan
	 

	 	 	 	Title: Authorised Signatory
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Malcolm O’Connell
	 

	 	 	 	 
	 

	 	 	 	Name: Malcolm O’Connell
	 

	 	 	 	Title: Authorised Signatory






 









 






	 	 	 	 	 
	 	 	FIRST BANK, as Lender
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Traci L. Dodson
	 

	 	 	 	 
	 

	 	 	 	Name: Traci L. Dodson
	 

	 	 	 	Title: Vice President






 









 






	 	 	 	 	 
	 	 	THE BANK OF NEW YORK, as Lender
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Craig J. Anderson
	 

	 	 	 	 
	 

	 	 	 	Name: Craig J. Anderson
	 

	 	 	 	Title: Vice President






 









 






	 	 	 	 	 
	 	 	WELLS FARGO BANK, N.A., as Lender
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Tim Green
	 

	 	 	 	 
	 

	 	 	 	Name: Tim Green
	 

	 	 	 	Title: Assistant Vice President






 









 






	 	 	 	 	 
	 	 	SUMITOMO MITSUI BANKING CORPORATION, as Lender
	 
	 	 	 	 
	 

	 	By:
	 	/s/ William Ginn
	 

	 	 	 	 
	 

	 	 	 	Name: William Ginn
	 

	 	 	 	Title: General Manager






 









 






	 	 	 	 	 
	 	 	SOVEREIGN BANK, as Lender
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Elisabet C. Hayes
	 

	 	 	 	 
	 

	 	 	 	Name: Elisabet C. Hayes
	 

	 	 	 	Title: Vice President






 









 






	 	 	 	 	 
	 	 	PEOPLE’S BANK, as Lender
	 
	 	 	 	 
	 

	 	By:
	 	/s/ George F. Pajk
	 

	 	 	 	 
	 

	 	 	 	Name: George F. Pajk
	 

	 	 	 	Title: Vice President






 









 






	 	 	 	 	 
	 	 	BAYERISCHE HYPO-UND
VEREINSBANK AG, New York Branch, as Lender
	 
	 	 	 	 
	 

	 	By:
	 	/s/ William W. Hunter
	 

	 	 	 	 
	 

	 	 	 	Name: William W. Hunter
	 

	 	 	 	Title: Director
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Annett Guderian
	 

	 	 	 	 
	 

	 	 	 	Name: Annett Guderian
	 

	 	 	 	Title: Associate Director






 









 






	 	 	 	 	 
	 	 	UNION BANK OF CALIFORNIA, N.A., as Lender
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Bryan P. Read
	 

	 	 	 	 
	 

	 	 	 	Name: Bryan P. Read
	 

	 	 	 	Title: Vice President






 









 






	 	 	 	 	 
	 	 	BAYERISCHE LANDESBANK, NEW YORK BANK, as Lender
	 
	 	 	 	 
	 

	 	By:
	 	/s/ John Gregory
	 

	 	 	 	 
	 

	 	 	 	Name: John Gregory
	 

	 	 	 	Title: Vice President
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Norman McClave
	 

	 	 	 	 
	 

	 	 	 	Name: Norman McClave
	 

	 	 	 	Title: First Vice President






 









 






	 	 	 	 	 
	 	 	BANK LEUMI USA, as Lender
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Joung Hee Hong
	 

	 	 	 	 
	 

	 	 	 	Name: Joung Hee Hong
	 

	 	 	 	Title: First Vice President







 









 





	 	 	 	 	 	 	 	 	 
	 	 	CREDIT INDUSTRIEL ET COMMERCIAL, as Lender	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Brian O’Leary
	 	/s/ Anthony Rock	 	 
	 	 	 	 	 	 	 
	 

	 	Name:
	 	Brian O’Leary
	 	Anthony Rock	 	 
	 

	 	Title:
	 	Vice President
	 	Vice President	 	 






 









 





	 	 	 	 	 	 	 	 	 
	 	 	STANDARD CHARTERED BANK, as Lender	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Andrew Y. Ng
	 	/s/ Lynn Zennario	 	 
	 	 	 	 	 	 	 
	 

	 	Name:
	 	Andrew Y. Ng
	 	Lynn Zennario	 	 
	 

	 	Title:
	 	Vice President
	 	Senior Vice President	 	 






 









 





	 	 	 	 	 
	 	LASALLE BANK NATIONAL ASSOCIATION, as Lender

 	 
	 	By:  	/s/  Margaret Dierkes
 	 
	 	 	Name:  	Margaret Dierkes 	 
	 	 	Title:  	Vice President 	 
	 




 









 





	 	 	 	 	 
	 	WESTPAC BANKING CORPORATION, as Lender

 	 
	 	By:  	/s/  Bradley Scammell
 	 
	 	 	Name:  	Bradley Scammell 	 
	 	 	Title:  	Vice President 	 
	 




 









 





	 	 	 	 	 
	 	THE ROYAL BANK OF SCOTLAND PLC, as Lender

 	 
	 	By:  	/s/  Brian J. Smith
 	 
	 	 	Name:  	Brian J. Smith 	 
	 	 	Title:  	Vice President 	 
	 




 









 





	 	 	 	 	 
	 	BNP Paribas, as Lender

 	 
	 	By:  	/s/  J. Onischuk
 	 
	 	 	Name:  	J. Onischuk 	 
	 	 	Title:  	Director 	 
	 
	 	 	 
	 	By:  	                        /s/  Greg Smothers
 	 
	 	 	Name:  	Greg Smothers 	 
	 	 	Title:  	Vice President 	 
	 




 









 





	 	 	 	 	 
	 	CAYLON New York Branch, as Lender

 	 
	 	By:  	/s/  Lee E. Greve
 	 
	 	 	Name:  	Lee E. Greve 	 
	 	 	Title:  	Managing Director 	 
	 
	 	 	 
	 	By:  	                       /s/  Joseph A. Philbin
 	 
	 	 	Name:  	Joseph A. Philbin 	 
	 	 	Title:  	Director 	 
	 




 









 





	 	 	 	 	 
	 	UMB BANK N.A., as Lender

 	 
	 	By:  	/s/  Robert D. Vieth
 	 
	 	 	Name:  	Robert D. Vieth 	 
	 	 	Title:  	Executive Vice President 	 
	 




 









 





	 	 	 	 	 
	 	MORGAN STANLEY BANK, as
Co-Documentation Agent and Lender



 	 
	 	By:  	/s/  Jaap L. Tonckens
 	 
	 	 	Name:  	Jaap L. Tonckens 	 
	 	 	Title:  	Authorized Signatory 	 
	 




 









 





	 	 	 	 	 
	 	ACKNOWLEDGED BY:



BANK OF AMERICA, NA.

as Administrative Agent, on behalf of the

Required Lenders

 	 
	 	By:  	/s/  Todd MacNeill
 	 
	 	 	Name:  	Todd MacNeill 	 
	 	 	Title:  	Vice President

Agency Management Officer III 	 
	 




 









 





CONSENT OF LOAN PARTIES

Dated as of September 27, 2006




     The undersigned, as Guarantors under the “Subsidiary Guaranty” (as such term is defined in and
under the Credit Agreement referred to in the foregoing Amendment No. 1), each hereby consents and
agrees to the foregoing Amendment No. 1 and hereby confirms and agrees that (i) the Subsidiary
Guaranty is, and shall continue to be, in full force and effect and is hereby ratified and
confirmed in all respects except that, upon the effectiveness of said Amendment No. 1, the
reference in the Subsidiary Guaranty to the “Credit Agreement”, “thereunder”, “thereof” and words
of like import referring to the Credit Agreement, shall mean and be a reference to the Credit
Agreement as modified by said Amendment No. 1, and (ii) the Subsidiary Guaranty does, and shall
continue to, constitute a guaranty of the Obligations as defined in the Subsidiary Guaranty.



[Signature
Page to Follow]





 










 





     IN WITNESS WHEREOF, the parties hereto have caused this Consent of Loan Parties to be executed
by their respective officers thereunto duly authorized, as of the date first written above.



AFFINITY MINING COMPANY




AMERICAN LAND DEVELOPMENT, LLC




AMERICAN LAND HOLDINGS OF ILLINOIS, LLC




AMERICAN LAND HOLDINGS OF INDIANA, LLC




AMERICAN LAND HOLDINGS OF KENTUCKY, LLC




APPALACHIA MINE SERVICES, LLC




ARCLAR COMPANY, LLC




ARID OPERATIONS INC.




BEAVER DAM COAL COMPANY




BIG RIDGE, INC.




BIG SKY COAL COMPANY




BLACK BEAUTY COAL COMPANY




BLACK BEAUTY EQUIPMENT COMPANY




BLACK BEAUTY HOLDING COMPANY, LLC




BLACK BEAUTY RESOURCES, LLC




BLACK HILLS MINING COMPANY, LLC




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BLACK STALLION COAL COMPANY, LLC




BLACK WALNUT COAL COMPANY




BLUEGRASS MINE SERVICES, LLC




BTU EMPIRE CORPORATION




BTU WESTERN RESOURCES, INC.




CABALLO COAL COMPANY




CENTRAL STATES COAL RESERVES OF ILLINOIS, LLC




CENTRAL STATES COAL RESERVES OF INDIANA, LLC




CENTRAL STATES COAL RESERVES OF KENTUCKY, LLC




CHARLES COAL COMPANY, LLC




CLEATON COAL COMPANY




COAL PROPERTIES, LLC




COAL RESERVE HOLDING LIMITED LIABILITY COMPANY NO. 1




COAL RESERVE HOLDING LIMITED LIABILITY COMPANY NO. 2




COALSALES II, LLC




COALSALES, LLC




COALTRADE INTERNATIONAL, LLC




COALTRADE, LLC




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COLONY BAY COAL COMPANY




COLORADO COAL RESOURCES, LLC




COLORADO YAMPA COAL COMPANY




COOK MOUNTAIN COAL COMPANY, LLC




COTTONWOOD LAND COMPANY




COULTERVILLE COAL COMPANY, LLC




CYPRUS CREEK LAND COMPANY




CYPRUS CREEK LAND RESOURCES, LLC




DIXON MINING COMPANY, LLC




DODGE HILL HOLDING JV, LLC




DODGE HILL MINING COMPANY, LLC




DODGE HILL OF KENTUCKY, LLC




DYSON CREEK COAL COMPANY, LLC




EACC CAMPS, INC.




EASTERN ASSOCIATED COAL, LLC




EASTERN COAL COMPANY, LLC




EASTERN ROYALTY CORP.




FALCON COAL COMPANY




FORT ENERGY, LLC




GALLO FINANCE COMPANY




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GOLD FIELDS CHILE, LLC




GOLD FIELDS MINING, LLC




GOLD FIELDS ORTIZ, LLC




GRAND EAGLE MINING, INC.




HAYDEN GULCH TERMINAL, INC.




HIGHLAND MINING COMPANY, LLC




HIGHWALL MINING SERVICES COMPANY




HILLSIDE MINING COMPANY




HMC MINING, LLC




INDEPENDENCE MATERIAL HANDLING, LLC




INDIAN HILL COMPANY




INTERIOR HOLDINGS, LLC




JAMES RIVER COAL TERMINAL, LLC




JARRELL’S BRANCH COAL COMPANY




JUNIPER COAL COMPANY




KAYENTA MOBILE HOME PARK, INC.




LOGAN FORK COAL COMPANY




MARTINKA COAL COMPANY, LLC




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MIDCO SUPPLY AND EQUIPMENT CORPORATION




MIDWEST COAL ACQUISITION CORP.




MIDWEST COAL RESERVES OF ILLINOIS, LLC




MIDWEST COAL RESERVES OF INDIANA, LLC




MIDWEST COAL RESOURCES, LLC




MOUNTAIN VIEW COAL COMPANY, LLC




MUSTANG ENERGY COMPANY, L.L.C.




NEW MEXICO COAL RESOURCES, LLC




NORTH PAGE COAL CORP.




OHIO COUNTY COAL COMPANY




PATRIOT COAL COMPANY, L.P.




PATRIOT MIDWEST HOLDINGS, LLC




PDC PARTNERSHIP HOLDINGS, LLC




PEABODY AMERICA, INC.




PEABODY ARCHVEYOR, L.L.C.




PEABODY CARDINAL GASIFICATION, LLC




PEABODY COAL COMPANY, LLC




PEABODY DEVELOPMENT COMPANY, LLC




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PEABODY ELECTRICITY, LLC




PEABODY ENERGY GENERATION HOLDING COMPANY




PEABODY ENERGY INVESTMENTS, INC.




PEABODY ENERGY SOLUTIONS, INC.




PEABODY HOLDING COMPANY, LLC




PEABODY INVESTMENTS CORP.




PEABODY NATURAL GAS, LLC




PEABODY NATURAL RESOURCES COMPANY




PEABODY POWERTREE INVESTMENTS, LLC




PEABODY RECREATIONAL LANDS, L.L.C.




PEABODY SOUTHWESTERN COAL COMPANY




PEABODY TERMINALS, LLC




PEABODY VENEZUELA COAL CORP.




PEABODY VENTURE FUND, LLC




PEABODY WESTERN COAL COMPANY




PEABODY-WATERSIDE DEVELOPMENT, L.L.C.




PEC EQUIPMENT COMPANY, LLC




PINE RIDGE COAL COMPANY, LLC




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POINT PLEASANT DOCK COMPANY, LLC




POND CREEK LAND RESOURCES, LLC




POND RIVER LAND COMPANY




PORCUPINE PRODUCTION, LLC




PORCUPINE TRANSPORTATION, LLC




POWDER RIVER COAL, LLC




POWDER RIVER RESOURCES, LLC




PRAIRIE STATE GENERATING COMPANY, LLC




RANDOLPH LAND HOLDING COMPANY, LLC




RIVERS EDGE MINING, INC.




RIVERVIEW TERMINAL COMPANY




SCHOOL CREEK COAL COMPANY, LLC




SCHOOL CREEK COAL RESOURCES, LLC




SENECA COAL COMPANY




SENTRY MINING, LLC




SHOSHONE COAL CORPORATION




SNOWBERRY LAND COMPANY




STAR LAKE ENERGY COMPANY, L.L.C.




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STERLING SMOKELESS COAL COMPANY, LLC




SUGAR CAMP PROPERTIES




THOROUGHBRED GENERATING COMPANY, LLC




THOROUGHBRED MINING COMPANY, L.L.C.




THOROUGHBRED, L.L.C.




TWENTYMILE COAL COMPANY




UNION COUNTY COAL COMPANY, LLC




WEST ROUNDUP RESOURCES, INC.




YANKEETOWN DOCK, LLC




	 	 	 
	 

	 	By:     /s/ Walter L. Hawkins, Jr.
	 

	 	 
	 

	 	     Name: Walter L. Hawkins, Jr.
	 

	 	      Title: Vice President and Treasurer







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