Peabody Energy Corp S-3, filed Mar 26, 2021
Peabody Energy Corp (BTU)
Table of Contents
As filed with the Securities and Exchange Commission on March 26, 2021
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Peabody Energy Corporation
(Exact name of Registrant as specified in its charter)
| Delaware | 1221 | 13-4004153 | ||
| (State or Other jurisdiction of Incorporation or Organization) |
(Primary Standard Industrial Classification Code Number) |
(I.R.S. Employer Identification Number |
701 Market Street
St. Louis, Missouri 63101-1826
(314) 342-3400
(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant’s Principal Executive Offices)
SEE TABLE OF ADDITIONAL REGISTRANTS
Scott T. Jarboe, Esq.
Chief Legal Officer and Corporate Secretary
Peabody Energy Corporation
701 Market Street
St. Louis, Missouri 63101-1826
(314) 342-3400
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service)
With a Copy to:
| Sudhir N. Shenoy, Esq. F. Reid Avett, Esq. Womble Bond Dickinson (US) LLP One Wells Fargo Center 301 S. College St., Suite 3500 Charlotte, NC 28202 |
Approximate date of commencement of proposed sale of the Securities to the public: From time to time after the registration statement becomes effective.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box: ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, as amended (the “Securities Act”), other than securities offered only in connection with dividend or interest reinvestment plans, check the following box: ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act:
| Large accelerated filer | ☐ | Accelerated filer | ☒ | |||
| Non-accelerated filer | ☐ | Smaller reporting company | ☐ | |||
| Emerging growth company | ☐ | |||||
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of Securities Act. ☐
CALCULATION OF REGISTRATION FEE
|
|
||||||||||||||||
| Title of Each Class of Securities to be Registered |
Amount to be Registered(1)(2) |
Proposed Maximum Aggregate Offering Price per Security(1)(2) |
Proposed Maximum Aggregate Offering Price(1) |
Amount of Registration Fee(3) |
||||||||||||
| Debt Securities |
||||||||||||||||
| Common Stock, par value $0.01 per share |
||||||||||||||||
| Preferred Stock, par value $0.01 per share |
||||||||||||||||
| Warrants |
||||||||||||||||
| Units(4) |
||||||||||||||||
| Guarantees of Debt Securities by Subsidiary Guarantors(5) |
||||||||||||||||
| Total |
$ | 2,000,000,000 | (6) | $ | 2,000,000,000 | $ | 218,200 | |||||||||
|
|
||||||||||||||||
|
|
||||||||||||||||
| (1) | Pursuant to General Instruction II.D to Form S-3, the Amount to be Registered, Proposed Maximum Offering Price Per Security and Proposed Maximum Aggregate Offering Price have been omitted for securities of each identified class which are registered hereby (the “Securities”). An indeterminate number and amount of the Securities is being registered as may from time to time be sold at indeterminate prices. |
| (2) | Includes such indeterminate amounts of Securities as may be issued upon exercise of, conversion of, exchange for or pursuant to any Securities that provide for that issuance. Also includes such indeterminate amounts of Securities as may be issued in units. Separate consideration may or may not be received for any of these Securities. |
| (3) | Calculated pursuant to Rule 457(o) under the Securities Act. |
| (4) | Each unit consists of any combination of two or more of the securities being registered hereby. |
| (5) | Debt securities may be issued without guarantees or may be guaranteed by one or more of the registrants named below under “Table of Co-Registrants.” No separate consideration will be received for such guarantees. Pursuant to Rule 457(n) under the Securities Act, no separate registration fee is required with respect to such guarantees. |
| (6) | Omitted pursuant to Rule 457(o) under the Securities Act. |
The Registrants hereby amend this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrants shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act or until the Registration Statement shall become effective on such date as the Securities and Exchange Commission (“SEC”), acting pursuant to said Section 8(a), may determine.
Table of Contents
TABLE OF CO-REGISTRANTS
| Exact Name of Co-Registrant as Specified in its Charter |
State or Other Jurisdiction of Incorporation Organization |
I.R.S. Employer Identification Number |
Address, Including Zip Code, and Telephone Number, Including Area Code, of Co-Registrant’s Principal Executive Offices | |||
| American Land Development, LLC | Delaware | 20-3405570 | 701 Market Street Suite 975 St. Louis, MO 63101 (314) 342-3400 | |||
| American Land Holdings of Colorado, LLC | Delaware | 26-3730572 | 701 Market Street Suite 809 St. Louis, MO 63101 (314) 342-3400 | |||
| American Land Holdings of Illinois, LLC | Delaware | 30-0440127 | 701 Market Street Suite 974 St. Louis, MO 63101 (314) 342-3400 | |||
| American Land Holdings of Indiana, LLC | Delaware | 20-2514299 | 701 Market Street Suite 737 St. Louis, MO 63101 (314) 342-3400 | |||
| American Land Holdings of Kentucky, LLC | Delaware | 20-0766113 | 701 Market Street Suite 719 St. Louis, MO 63101 (314) 342-3400 | |||
| Big Ridge, Inc. | Illinois | 37-1126950 | 420 Long Lane Road Equality, IL 62946 (618) 273-4314 | |||
| Big Sky Coal Company | Delaware | 81-0476071 | 701 Market Street Suite 763 St. Louis, MO 63101 (314) 342-3400 | |||
| BTU Western Resources, Inc. | Delaware | 20-1019486 | 701 Market Street Suite 735 St. Louis, MO 63101 (314) 342-3400 | |||
| COALSALES II, LLC | Delaware | 43-1610419 | 701 Market Street Suite 830 St. Louis, MO 63101 (314) 342-3400 | |||
| Conservancy Resources, LLC | Delaware | 20-5744701 | 701 Market Street Suite 755 St. Louis, MO 63101 (314) 342-3400 | |||
| El Segundo Coal Company, LLC | Delaware | 20-8162824 | 701 Market Street Suite 768 St. Louis, MO 63101 (314) 342-3400 | |||
Table of Contents
| Exact Name of Co-Registrant as Specified in its Charter |
State or Other Jurisdiction of Incorporation Organization |
I.R.S. Employer Identification Number |
Address, Including Zip Code, and Telephone Number, Including Area Code, of Co-Registrant’s Principal Executive Offices | |||
| Hayden Gulch Terminal, LLC | Delaware | 86-0719481 | 701 Market Street Suite 714 St. Louis, MO 63101 (314) 342-3400 | |||
| Hillside Recreational Lands, LLC | Delaware | 32-0214135 | 701 Market Street Suite 797 St. Louis, MO 63101 (314) 342-3400 | |||
| Kayenta Mobile Home Park, Inc. | Delaware | 86-0773596 | P.O. Box 605 Kayenta, AZ 86033 (928) 677-3201 | |||
| Kentucky United Coal, LLC | Indiana | 35-2088769 | 701 Market Street Suite 733 St. Louis, MO 63101 (314) 342-3400 | |||
| Moffat County Mining, LLC | Delaware | 74-1869420 | 701 Market Street Suite 733 St. Louis, MO 63101 (314) 342-3400 | |||
| New Mexico Coal Resources, LLC | Delaware | 20-3405643 | 701 Market Street Suite 804 St. Louis, MO 63101 (314) 342-3400 | |||
| NGS Acquisition Corp., LLC | Delaware | 35-2618206 | 701 Market Street Suite 733 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody America, LLC | Delaware | 93-1116066 | 701 Market Street Suite 720 St. Louis, MO 63101-1826 (314) 342-3400 | |||
| Peabody Arclar Mining, LLC | Indiana | 31-1566354 | 420 Long Lane Road Equality, IL 62934 (618) 273-4314 | |||
| Peabody Asset Holdings, LLC | Delaware | 20-3367333 | 701 Market Street Suite 733 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Bear Run Mining, LLC | Delaware | 26-3582291 | 701 Market Street Suite 802 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Bear Run Services, LLC | Delaware | 26-3725923 | 701 Market Street Suite 820 St. Louis, MO 63101 (314) 342-3400 | |||
Table of Contents
| Exact Name of Co-Registrant as Specified in its Charter |
State or Other Jurisdiction of Incorporation Organization |
I.R.S. Employer Identification Number |
Address, Including Zip Code, and Telephone Number, Including Area Code, of Co-Registrant’s Principal Executive Offices | |||
| Peabody Caballo Mining, LLC | Delaware | 83-0309633 | 701 Market Street Suite 711 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Cardinal Gasification, LLC | Delaware | 20-5047955 | 701 Market Street Suite 931 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody China, LLC | Delaware | 43-1898525 | 701 Market Street Suite 931 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody COALSALES, LLC | Delaware | 20-1759740 | 701 Market Street Suite 831 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody COALTRADE, LLC | Delaware | 43-1666743 | 701 Market Street Suite 835 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Colorado Operations, LLC | Delaware | 20-2561644 | 701 Market Street Suite 832 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Colorado Services, LLC | Delaware | 26-3723774 | 701 Market Street Suite 813 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Coulterville Mining, LLC | Delaware | 20-0217834 | 701 Market Street Suite 723 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Development Company, LLC | Delaware | 43-1265557 | 701 Market Street Suite 970 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Electricity, LLC | Delaware | 20-3405744 | 701 Market Street Suite 784 Louis, MO 63101 (314) 342-3400 | |||
| Peabody Employment Services, LLC | Delaware | 26-3730348 | 701 Market Street Suite 808 St. Louis, MO 63101 (314) 342-3400 | |||
Table of Contents
| Exact Name of Co-Registrant as Specified in its Charter |
State or Other Jurisdiction of Incorporation Organization |
I.R.S. Employer Identification Number |
Address, Including Zip Code, and Telephone Number, Including Area Code, of Co-Registrant’s Principal Executive Offices | |||
| Peabody Gateway North Mining, LLC | Delaware | 27-2294407 | 701 Market Street Suite 827 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Gateway Services, LLC | Delaware | 26-3724075 | 701 Market Street Suite 817 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Global Funding, LLC | Delaware | 37-1748000 | 701 Market Street Suite 817 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Global Holdings, LLC | Delaware | 20-5543587 | 701 Market Street Suite 817 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Holding Company, LLC | Delaware | 74-2666822 | 701 Market Street Suite 741 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody IC Funding Corp. | Delaware | 46-2326991 | 701 Market Street Suite 811 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Illinois Services, LLC | Delaware | 26-3722638 | 701 Market Street Suite 811 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Indiana Services, LLC | Delaware | 26-3724339 | 701 Market Street Suite 818 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody International Holdings, LLC | Delaware | 36-4861089 | 701 Market Street Suite 818 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody International Investments, Inc. | Delaware | 26-1361182 | 701 Market Street Suite 703 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody International Services, Inc. | Delaware | 20-8340434 | 701 Market Street Suite 783 St. Louis, MO 63101 (314) 342-3400 | |||
Table of Contents
| Exact Name of Co-Registrant as Specified in its Charter |
State or Other Jurisdiction of Incorporation Organization |
I.R.S. Employer Identification Number |
Address, Including Zip Code, and Telephone Number, Including Area Code, of Co-Registrant’s Principal Executive Offices | |||
| Peabody Investments Corp. | Delaware | 20-0480084 | 701 Market Street Suite 707 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Midwest Management Services, LLC | Delaware | 26-3726045 | 701 Market Street Suite 816 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Midwest Mining, LLC | Indiana | 35-1799736 | 7100 Eagle Crest Blvd Evansville, IN 47715 (812) 424-9000 | |||
| Peabody Midwest Operations, LLC | Delaware | 20-3405619 | 701 Market Street Suite 744 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Midwest Services, LLC | Delaware | 26-3722194 | 701 Market Street Suite 810 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Mongolia, LLC | Delaware | 20-8714315 | 701 Market Street Suite 740 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Natural Gas, LLC | Delaware | 43-1890836 | 701 Market Street Suite 740 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Natural Resources Company | Delaware | 51-0332232 | 701 Market Street Suite 718 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody New Mexico Services, LLC | Delaware | 20-8162939 | 701 Market Street Suite 769 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Operations Holding, LLC | Delaware | 26-3723890 | 701 Market Street Suite 815 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Powder River Mining, LLC | Delaware | 43-0996010 | 701 Market Street Suite 702 St. Louis, MO 63101 (314) 342-3400 | |||
Table of Contents
| Exact Name of Co-Registrant as Specified in its Charter |
State or Other Jurisdiction of Incorporation Organization |
I.R.S. Employer Identification Number |
Address, Including Zip Code, and Telephone Number, Including Area Code, of Co-Registrant’s Principal Executive Offices | |||
| Peabody Powder River Operations, LLC | Delaware | 20-3405797 | 701 Market Street Suite 700 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Powder River Services, LLC | Delaware | 26-3725850 | 701 Market Street Suite 826 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Rocky Mountain Management Services, LLC | Delaware | 26-3725390 | 701 Market Street Suite 823 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Rocky Mountain Services, LLC | Delaware | 20-8162706 | 701 Market Street Suite 767 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Sage Creek Mining, LLC | Delaware | 26-3730653 | 701 Market Street Suite 803 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody School Creek Mining, LLC | Delaware | 20-2902073 | 701 Market Street Suite 738 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Services Holdings, LLC | Delaware | 26-3726126 | 701 Market Street Suite 814 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Southeast Mining, LLC | Delaware | 61-1901650 | 701 Market Street Suite 814 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Twentymile Mining, LLC | Delaware | 26-3725223 | 701 Market Street Suite 822 St. Louis, MO 63101-1826 (314) 342-3400 | |||
| Peabody Venezuela Coal Corp. | Delaware | 43-1609813 | 701 Market Street Suite 715 St. Louis, MO 63101-1826 (314) 342-3400 | |||
| Peabody Venture Fund, LLC | Delaware | 20-3405779 | 701 Market Street Suite 758 St. Louis, MO 63101 (314) 342-3400 | |||
Table of Contents
| Exact Name of Co-Registrant as Specified in its Charter |
State or Other Jurisdiction of Incorporation Organization |
I.R.S. Employer Identification Number |
Address, Including Zip Code, and Telephone Number, Including Area Code, of Co-Registrant’s Principal Executive Offices | |||
| Peabody-Waterside Development, L.L.C. | Delaware | 75-3098342 | 701 Market Street Suite 921 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Western Coal Company | Delaware | 86-0766626 | P.O. Box 605 Kayenta, AZ 86033 (928) 677-3201 | |||
| Peabody Wild Boar Mining, LLC | Delaware | 26-3730759 | 701 Market Street Suite 825 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Wild Boar Services, LLC | Delaware | 26-3725591 | 701 Market Street Suite 824 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Williams Fork Mining, LLC | Delaware | 20-8162742 | 701 Market Street Suite 766 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Wyoming Services, LLC | Delaware | 26-3723011 | 701 Market Street Suite 812 St. Louis, MO 63101 (314) 342-3400 | |||
| PEC Equipment Company, LLC | Delaware | 20-0217950 | 701 Market Street Suite 726 St. Louis, MO 63101 (314) 342-3400 | |||
| Sage Creek Holdings, LLC | Delaware | 26-3286872 | 701 Market Street Suite 801 St. Louis, MO 63101 (314) 342-3400 | |||
| Sage Creek Land & Reserves, LLC | Delaware | 38-3936826 | 701 Market Street Suite 862 St. Louis, MO 63101 (314) 342-3400 | |||
| Seneca Coal Company, LLC | Delaware | 84-1273892 | 701 Market Street Suite 787 St. Louis, MO 63101 (314) 342-3400 | |||
| Seneca Property, LLC | Delaware | 36-4820253 | 701 Market Street Suite 862 St. Louis, MO 63101 (314) 342-3400 | |||
Table of Contents
| Exact Name of Co-Registrant as Specified in its Charter |
State or Other Jurisdiction of Incorporation Organization |
I.R.S. Employer Identification Number |
Address, Including Zip Code, and Telephone Number, Including Area Code, of Co-Registrant’s Principal Executive Offices | |||
| Shoshone Coal Corporation | Delaware | 25-1336898 | 701 Market Street Suite 734 St. Louis, MO 63101 (314) 342-3400 | |||
| Twentymile Coal, LLC | Delaware | 95-3811846 | 701 Market Street Suite 731 St. Louis, MO 63101 (314) 342-3400 | |||
| United Minerals Company LLC | Indiana | 35-1922432 | 701 Market Street Suite 731 St. Louis, MO 63101 (314) 342-3400 | |||
Table of Contents
The information in this preliminary prospectus is not complete and may be changed. These securities may not be sold until the registration statement filed with the Securities and Exchange Commission is effective. This preliminary prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED MARCH 26, 2021
PRELIMINARY PROSPECTUS
$2,000,000,000
Peabody Energy Corporation
Debt Securities
Common Stock
Preferred Stock
Warrants
Units
Guarantees of Debt Securities
Peabody Energy Corporation may offer and sell from time to time, in one or more series, any one of the following securities for an aggregate offering price of $2,000,000,000:
| • | debt securities, |
| • | common stock, |
| • | preferred stock, |
| • | warrants, and |
| • | units, |
or any combination of these securities. In addition, we may offer and sell debt securities that may be guaranteed by substantially all of our wholly-owned domestic subsidiaries.
Our common stock is traded on the New York Stock Exchange (“NYSE”) under the symbol “BTU.” We will provide more specific information about the terms of an offering of any securities in supplements to this prospectus.
We may offer these securities directly to investors, through agents, underwriters or dealers on a continuous or delayed basis, through a combination of these methods or any other method as provided in the applicable prospectus supplement. Each prospectus supplement will provide the terms of the plan of distribution relating to each series of securities. Covenants under our existing indentures governing our outstanding senior secured notes and the agreements governing our other indebtedness, including our existing credit facility, letter of credit facility, term loan facility, certain finance leases, account receivable securitization facility, and our transaction support agreement with our surety providers may each limit our ability to incur additional indebtedness.
Investing in our securities involves risks. You should read this prospectus and the applicable prospectus supplement, as well as the risk factors referred to on page 4 of this prospectus under the caption “Risk Factors” and those contained or described in the documents incorporated by reference in this prospectus or any accompanying prospectus supplement, before you invest.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2021
Table of Contents
| ii | ||||
| iii | ||||
| 1 | ||||
| 4 | ||||
| 4 | ||||
| 6 | ||||
| 7 | ||||
| 18 | ||||
| 23 | ||||
| 24 | ||||
| 25 | ||||
| 26 | ||||
| 30 | ||||
| 30 | ||||
| 30 | ||||
| 30 | ||||
| 31 |
i
Table of Contents
This prospectus describes the general terms of the securities to be offered hereby. A prospectus supplement that will describe the specific amounts, prices and other terms of the securities being offered will be provided to you in connection with each sale of securities offered pursuant to this prospectus. The prospectus supplement or any free writing prospectus prepared by or on behalf of us may also add, update or change information contained in this prospectus. To understand the terms of securities offered pursuant to this prospectus, you should carefully read this document with the applicable prospectus supplement or any free writing prospectus prepared by or on behalf of us. Together, these documents will give the specific terms of the offered securities. You should also read the documents we have incorporated by reference in this prospectus described below under “Incorporation of Certain Documents By Reference.”
You should rely only on the information incorporated by reference or provided in this prospectus, any prospectus supplement or any free writing prospectus prepared by or on behalf of us. We have not authorized anyone else to provide you with different information. We are not making an offer of these securities in any jurisdiction where the offer is not permitted. You should not assume that the information in this prospectus, any prospectus supplement or any free writing prospectus is accurate as of any date other than the date on the front of those documents. Since the respective dates of this prospectus and the documents incorporated by reference into this prospectus, our business, financial condition, results of operations and prospects may have changed.
ii
Table of Contents
CAUTIONARY NOTICE REGARDING FORWARD-LOOKING STATEMENTS
Some of the information included in this prospectus and the documents we have incorporated by reference include statements of our expectations, intentions, plans and beliefs that constitute “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”), and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and are intended to come within the safe harbor protection provided by those sections. These statements relate to future events or our future financial performance. We use words such as “anticipate,” “believe,” “expect,” “may,” “forecast,” “project,” “should,” “estimate,” “plan,” “outlook,” “target,” “likely,” “will,” “to be” or other similar words to identify forward-looking statements.
Without limiting the foregoing, all statements relating to our future operating results, anticipated capital expenditures, future cash flows and borrowings, and sources of funding are forward-looking statements. These forward-looking statements are based on numerous assumptions that we believe are reasonable, but are subject to a wide range of uncertainties and business risks and actual results may differ materially from those discussed in these statements. These factors are difficult to accurately predict and may be beyond our control.
In addition to the risks and factors identified in our Annual Report on Form 10-K for the year ended December 31, 2020, incorporated by reference herein, including those discussed in “Legal Proceedings” and “Risk Factors,” the following risks related to our business, among others, could cause actual results to differ materially from those described in the forward-looking statements:
| • | our profitability depends upon the prices we receive for our coal; |
| • | if a substantial number of our long-term coal supply agreements, including those with our largest customers, terminate, or if the pricing, volumes or other elements of those agreements materially adjust, our revenues and operating profits could suffer if we are unable to find alternate buyers willing to purchase our coal on comparable terms to those in our contracts; |
| • | risks inherent to mining could increase the cost of operating our business, and events and conditions that could occur during the course of our mining operations could have a material adverse impact on us; |
| • | our take-or-pay arrangements could unfavorably affect our profitability; |
| • | we may not recover our investments in our mining, exploration and other assets, which may require us to recognize impairment charges related to those assets; |
| • | we could be negatively affected if we fail to maintain satisfactory labor relations; |
| • | we could be adversely affected if we fail to appropriately provide financial assurances for our obligations; |
| • | our mining operations are extensively regulated, which imposes significant costs on us, and future regulations and developments could increase those costs or limit our ability to produce coal; |
| • | our operations may impact the environment or cause exposure to hazardous substances, and our properties may have environmental contamination, which could result in material liabilities to us; |
| • | we may be unable to obtain, renew or maintain permits necessary for our operations, or we may be unable to obtain, renew or maintain such permits without conditions on the manner in which we run our operations, which would reduce our production, cash flows and profitability; |
| • | concerns about the impacts of coal combustion on global climate are increasingly leading to consequences that have affected and could continue to affect demand for our products or our securities and our ability to produce, including increased governmental regulation of coal combustion and unfavorable investment decisions by electricity generators; |
iii
Table of Contents
| • | numerous activist groups are devoting substantial resources to anti-coal activities to minimize or eliminate the use of coal as a source of electricity generation, domestically and internationally, thereby further reducing the demand and pricing for coal, and potentially materially and adversely impacting our future financial results, liquidity and growth prospects; |
| • | our trading and hedging activities do not cover certain risks and may expose us to earnings volatility and other risks; |
| • | if the assumptions underlying our asset retirement obligations for reclamation and mine closures are materially inaccurate, our costs could be significantly greater than anticipated; |
| • | our future success depends upon our ability to continue acquiring and developing coal reserves that are economically recoverable; |
| • | we face numerous uncertainties in estimating our economically recoverable coal reserves and inaccuracies in our estimates could result in lower than expected revenues, higher than expected costs and decreased profitability; |
| • | joint ventures, partnerships or non-managed operations may not be successful and may not comply with our operating standards; |
| • | we may undertake further repositioning plans that would require additional charges; |
| • | our business, results of operations, financial condition and prospects could be materially and adversely affected by the recent coronavirus (COVID-19) pandemic and the related effects on public health; |
| • | our expenditures for postretirement benefit obligations could be materially higher than we have predicted if our underlying assumptions prove to be incorrect; |
| • | we are subject to various general operating risks which may be fully or partially outside of our control; |
| • | our financial performance could be adversely affected by our funded indebtedness (“Indebtedness”); |
| • | despite our Indebtedness, we may still be able to incur more debt, which could further increase the risks associated with our Indebtedness; |
| • | the terms of the indentures governing our senior secured notes and the agreements and instruments governing our other Indebtedness and surety bonding obligations impose restrictions that may limit our operating and financial flexibility; |
| • | the number and quantity of viable financing and insurance alternatives available to us may be significantly impacted by unfavorable lending and investment policies by financial institutions and insurance companies associated with concerns about environmental impacts of coal combustion, and negative views around our efforts with respect to environmental and social matters and related governance considerations could harm the perception of our company by a significant number of investors or result in the exclusion of our securities from consideration by those investors; |
| • | the price of our securities may be volatile and could fall below the minimum allowed by NYSE listing requirements; |
| • | our common stock is subject to dilution and may be subject to further dilution in the future; |
| • | there may be circumstances in which the interests of a significant stockholder could be in conflict with other stakeholders’ interests; |
| • | the payment of dividends on our stock or repurchase of our stock is dependent on a number of factors, and future payments and repurchases cannot be assured; |
| • | we may not be able to fully utilize our deferred tax assets; |
iv
Table of Contents
| • | acquisitions and divestitures are a potentially important part of our long-term strategy, subject to our investment criteria, and involve a number of risks, any of which could cause us not to realize the anticipated benefits; |
| • | our certificate of incorporation and by-laws include provisions that may discourage a takeover attempt; |
| • | diversity in interpretation and application of accounting literature in the mining industry may impact our reported financial results; and |
| • | other assumptions, risks and uncertainties detailed from time to time in our filings made with the SEC. |
When considering these forward-looking statements, you should keep in mind the cautionary statements in this document and the documents incorporated by reference, including, but not limited to, the more detailed discussion of these factors and other factors that could affect our results contained in “Risk Factors.” These forward-looking statements speak only as of the date on which such statements were made, and we undertake no obligation to update these statements except as required by federal securities laws.
v
Table of Contents
This summary highlights selected information from this prospectus and does not contain all of the information that may be important to you. This prospectus provides you with a general description of the securities we may offer. Each time we sell securities, we will provide you with a prospectus supplement that will describe the specific amounts, prices and other terms of the securities being offered. The prospectus supplement may also add, update or change information contained in this prospectus. To understand the terms of our securities, you should carefully read this document with the applicable prospectus supplement and any free writing prospectus prepared by or on behalf of us. Together, these documents will give the specific terms of the securities we are offering. You should also read the documents we have incorporated by reference in this prospectus described below under “Incorporation of Certain Documents by Reference.” When used in this prospectus, the terms “we,” “our,” and “us,” except as otherwise indicated or as the context otherwise indicates, refer to Peabody Energy Corporation and/or its applicable subsidiary or subsidiaries.
The Securities We May Offer
We may offer and sell from time to time, for an aggregate offering price of $2,000,000,000:
| • | debt securities; |
| • | common stock; |
| • | preferred stock; |
| • | warrants; and |
| • | units. |
In addition, we may offer and sell debt securities that may be guaranteed by substantially all of our wholly-owned domestic subsidiaries.
Debt Securities
We may offer the debt securities from time to time in as many distinct series as we may determine under an indenture to be entered into between us and a trustee. We may use different trustees for different series of debt securities issued under the indenture. When we offer to sell a particular series of debt securities, we urge you to read the indenture, including any related supplemental indentures, applicable to a particular series of debt securities.
Covenants under our existing indentures governing our outstanding senior secured notes and the agreements governing our other indebtedness, including our existing credit facility, letter of credit facility, term loan facility, and certain finance leases, our account receivable securitization facility, and our transaction support agreement with surety providers limit our ability to incur additional indebtedness. These restrictions are subject to a number of qualifications and exceptions and, under certain circumstances, debt incurred in compliance with these restrictions could be material. See “Risk Factors—Despite our Indebtedness, we may still be able to incur more debt, which could further increase the risks associated with our Indebtedness” and “Risk Factors—The terms of the indentures governing our senior secured notes and the agreements and instruments governing our other Indebtedness and surety bonding obligations impose restrictions that may limit our operating and financial flexibility” in our Annual Report on Form 10-K for the year ended December 31, 2020, as the same may be updated from time to time, that we have incorporated by reference herein.
Common Stock
We may issue shares of our common stock, par value $0.01 per share (“Common Stock”). Holders of Common Stock are entitled to receive ratably dividends if, as and when dividends are declared from time to time
1
Table of Contents
by our board of directors out of funds legally available for that purpose, after payment of dividends required to be paid on outstanding preferred stock or series common stock. Holders of Common Stock are entitled to one vote per share. Holders of Common Stock do not have cumulative voting rights in the election of directors.
Preferred Stock
We may issue shares of our preferred stock, par value $0.01 per share (“Preferred Stock”), in one or more series. Our board of directors will determine the dividend, voting, conversion and other rights of the series of Preferred Stock being offered.
Warrants
We may issue warrants for the purchase of preferred stock or common stock or debt securities of our company. We may issue warrants independently or together with other securities. Warrants sold with other securities as a unit may be attached to or separate from the other securities. We will issue warrants under one or more warrant agreements between us and a warrant agent that we will name in the applicable prospectus supplement.
Units
We may also issue units comprised of one or more of the other securities described in this prospectus in any combination. Each unit may also include debt obligations of third parties, such as U.S. Treasury securities. Each unit will be issued so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights and obligations of a holder of each included security.
Guarantees
We may offer and sell debt securities that may be guaranteed by substantially all of our wholly owned domestic subsidiaries. The applicable prospectus supplement will describe the terms of any guarantees. The guarantees will be issued pursuant to documents to be issued by us.
Peabody Energy Corporation
We are a leading coal producer. At December 31, 2020, we owned interests in 17 active coal mining operations located in the United States (U.S.) and Australia. Included in that count is our 50% equity interest in Middlemount Coal Pty Ltd. (Middlemount), which owns the Middlemount Mine in Queensland, Australia. In addition to our mining operations, we market and broker coal from other coal producers, both as principal and agent, and trade coal and freight-related contracts through trading and business offices in the U.S., Australia, China and the United Kingdom.
On April 13, 2016, Peabody Energy Corporation and a majority of its wholly owned domestic subsidiaries, as well as one international subsidiary in Gibraltar (collectively with Peabody Energy Corporation, the Debtors), filed voluntary petitions for reorganization under Chapter 11 of Title 11 of the U.S. Code in the U.S. Bankruptcy Court for the Eastern District of Missouri (the Bankruptcy Court). The Debtors’ Chapter 11 cases (collectively, the Chapter 11 Cases) were jointly administered under the caption In re Peabody Energy Corporation, et al., Case No. 16-42529 (Bankr. E.D. Mo.). On March 17, 2017, the Bankruptcy Court entered an order, Docket No. 2763, confirming the Debtors’ Second Amended Joint Plan of Reorganization of Debtors and Debtors in Possession (as further modified, the Plan). On April 3, 2017, (the Effective Date), the Debtors satisfied the conditions to effectiveness set forth in the Plan, the Plan became effective in accordance with its terms and the Debtors emerged from the Chapter 11 Cases.
2
Table of Contents
Our Common Stock is listed on the NYSE under the symbol “BTU.” Additional information about Peabody Energy Corporation and its subsidiaries can be found in our documents filed with the SEC, which are incorporated herein by reference. See “Where You Can Find More Information” and “Incorporation of Certain Documents by Reference” in this prospectus.
Our principal executive offices are located at 701 Market Street, St. Louis, Missouri 63101-1826, and our telephone number is (314) 342-3400. Our Internet website address is www.peabodyenergy.com. Information on our website is not a part of, or incorporated by reference in, this prospectus.
3
Table of Contents
Investing in the securities involves risk. Please see the “Risk Factors” section in our most recent Annual Report on Form 10-K, which is incorporated by reference in this prospectus, as the same may be updated by our filings with the SEC from time to time. The prospectus supplement applicable to each type or series of securities we offer may contain a discussion of additional risks applicable to an investment in us and the particular type of securities we are offering under that prospectus supplement. Before making an investment decision, you should carefully consider these risks as well as other information contained or incorporated by reference in this prospectus and any prospectus supplement, including filings made with the SEC subsequent to the date hereof.
SUMMARIZED GUARANTOR FINANCIAL INFORMATION
We may offer and sell from time to time debt securities that may be guaranteed by our Subsidiary Guarantors. Our Subsidiary Guarantors include each of American Land Development, LLC, American Land Holdings of Colorado, LLC, American Land Holdings of Illinois, LLC, American Land Holdings of Indiana, LLC, American Land Holdings of Kentucky, LLC, Big Ridge, Inc., Big Sky Coal Company, BTU Western Resources, Inc., COALSALES II, LLC, Conservancy Resources, LLC, El Segundo Coal Company, LLC, Hayden Gulch Terminal, LLC, Hillside Recreational Lands, LLC, Kayenta Mobile Home Park, Inc., Kentucky United Coal, LLC, Moffat County Mining, LLC, New Mexico Coal Resources, LLC, NGS Acquisition Corp., LLC, Peabody America, LLC, Peabody Arclar Mining, LLC, Peabody Asset Holdings, LLC, Peabody Bear Run Mining, LLC, Peabody Bear Run Services, LLC, Peabody Caballo Mining, LLC, Peabody Cardinal Gasification, LLC, Peabody China, LLC, Peabody COALSALES, LLC, Peabody COALTRADE, LLC, Peabody Colorado Operations, LLC, Peabody Colorado Services, LLC, Peabody Coulterville Mining, LLC, Peabody Development Company, LLC, Peabody Electricity, LLC, Peabody Employment Services, LLC, Peabody Gateway North Mining, LLC, Peabody Gateway Services, LLC, Peabody Global Funding, LLC, Peabody Global Holdings, LLC, Peabody Holding Company, LLC, Peabody IC Funding Corp., Peabody Illinois Services, LLC, Peabody Indiana Services, LLC, Peabody International Holdings, LLC, Peabody International Investments, Inc., Peabody International Services, Inc., Peabody Investments Corp., Peabody Midwest Management Services, LLC, Peabody Midwest Mining, LLC, Peabody Midwest Operations, LLC, Peabody Midwest Services, LLC, Peabody Mongolia, LLC, Peabody Natural Gas, LLC, Peabody Natural Resources Company, Peabody New Mexico Services, LLC, Peabody Operations Holding, LLC, Peabody Powder River Mining, LLC, Peabody Powder River Operations, LLC, Peabody Powder River Services, LLC, Peabody Rocky Mountain Management Services, LLC, Peabody Rocky Mountain Services, LLC, Peabody Sage Creek Mining, LLC, Peabody School Creek Mining, LLC, Peabody Services Holdings, LLC, Peabody Southeast Mining, LLC, Peabody Twentymile Mining, LLC, Peabody Venezuela Coal Corp., Peabody Venture Fund, LLC, Peabody-Waterside Development, L.L.C., Peabody Western Coal Company, Peabody Wild Boar Mining, LLC, Peabody Wild Boar Services, LLC, Peabody Williams Fork Mining, LLC, Peabody Wyoming Services, LLC, PEC Equipment Company, LLC, Sage Creek Holdings, LLC, Sage Creek Land & Reserves, LLC, Seneca Coal Company, LLC, Seneca Property, LLC, Shoshone Coal Corporation, Twentymile Coal, LLC, United Minerals Company LLC and any other of our future subsidiaries specified in any prospectus supplement.
The applicable prospectus supplement will describe the terms of any guarantees. The guarantees will be issued pursuant to documents to be issued by us. You should read the particular terms of the documents, which will be described in more detail in the applicable prospectus supplement. The particular terms of any guarantees offered by any prospectus supplement, and the extent to which the general provisions summarized below may apply to the offered securities, will be described in the prospectus supplement.
In lieu of providing separate financial statements for our Subsidiary Guarantors, we include the accompanying unaudited summarized combined financial information of Peabody Energy Corporation and the
Subsidiary Guarantors (collectively, the “Obligors”) after the elimination of intercompany transactions and
4
Table of Contents
balances among the Obligors and the elimination of equity in earnings from and investments in any subsidiary of Peabody Energy Corporation that is a non-guarantor (in millions).
| Unaudited December 31, 2020 |
||||
| Current assets |
$ | 705.0 | ||
| Noncurrent assets, less receivable from non-guarantor subsidiaries |
1,773.4 | |||
| Long-term receivable from non-guarantor subsidiaries |
150.8 | |||
| Current liabilities, less payable to non-guarantor subsidiaries |
452.3 | |||
| Current payable to non-guarantor subsidiaries |
16.2 | |||
| Noncurrent liabilities |
2,578.1 | |||
| Noncontrolling interests |
1.8 | |||
| Unaudited Year Ended December 31, 2020 |
||||
| Revenues |
$ | 1,797.6 | ||
| Operating loss |
(1,507.6 | ) | ||
| Loss from continuing operations before income taxes |
(1,629.0 | ) | ||
| Net loss |
(1,640.9 | ) | ||
| Net loss attributable to common stockholders |
(1,641.1 | ) | ||
Subsequent to December 31, 2020, Peabody Energy Corporation completed a series of refinancing transactions as more fully described in its Annual Report on Form 10-K for the year ended December 31, 2020, whereby approximately $615 million of debt held by Peabody Energy Corporation was exchanged for $19 million of cash, approximately $195 million of debt held by Peabody Energy Corporation and approximately $400 million of debt held by subsidiary entities that are not Subsidiary Guarantors under this S-3 filing.
5
Table of Contents
Unless otherwise indicated in the prospectus supplement, we will use all or a portion of the net proceeds from the sale of our securities offered by this prospectus and the prospectus supplement for general corporate purposes. General corporate purposes may include repayment of debt, capital expenditures, possible acquisitions and any other purposes that may be stated in any prospectus supplement. The net proceeds may be invested temporarily or applied to repay short-term or revolving debt until they are used for their stated purpose.
6
Table of Contents
DESCRIPTION OF DEBT SECURITIES
We have summarized below general terms and conditions of the debt securities that we may offer and sell pursuant to this prospectus. When we offer to sell a particular series of debt securities, we will describe the specific terms and conditions of the series in a prospectus supplement to this prospectus. We will also indicate in the applicable prospectus supplement whether the general terms and conditions described in this prospectus apply to such series of debt securities. In addition, the terms and conditions of the debt securities of a series may be different in one or more respects from the terms and conditions described below. If so, those differences will be described in the applicable prospectus supplement. We may, but need not, describe any additional or different terms and conditions of those debt securities in an annual report on Form 10-K, a quarterly report on Form 10-Q or a current report on Form 8-K filed with the SEC, the information in which would be incorporated by reference in this prospectus and that report will be identified in the applicable prospectus supplement.
We will issue the debt securities in one or more series, which will consist of either our senior debt or our subordinated debt, under an indenture between us and a trustee. The debt securities of any series, whether senior or subordinated, may be issued as convertible debt securities or exchangeable debt securities. We may use different trustees for different series of debt securities issued under the indenture. The following summary of provisions of the indenture does not purport to be complete and is subject to, and qualified in its entirety by reference to, all of the provisions of the indenture, including definitions therein of certain terms. This summary may not contain all of the information that you may find useful. The terms and conditions of the debt securities of each series will be set forth in those debt securities and may also be set forth in an indenture supplemental to the indenture. For a comprehensive description of any series of debt securities being offered pursuant to this prospectus, you should read both this prospectus and any applicable prospectus supplement.
We have filed the form of indenture as an exhibit to the registration statement of which this prospectus forms a part. A form of each debt security, reflecting the specific terms and provisions of that series of debt securities, will be filed with the SEC in connection with each offering and will be incorporated by reference in the registration statement of which this prospectus forms a part. Copies of the indenture, any supplemental indenture and any form of debt security that has been filed may be obtained in the manner described under “Where You Can Find More Information.” We also urge you to read the indenture, including any related supplemental indenture, applicable to a particular series of debt securities because they, and not this description, define your rights as the holders of debt securities.
Capitalized terms used and not defined in this summary have the meanings specified in the indenture. For purposes of this section of this prospectus, references to “we,” “us” and “our” are to Peabody Energy Corporation (parent company only) and not to any of its subsidiaries. References to the “applicable prospectus supplement” are to the prospectus supplement to this prospectus that describes the specific terms and conditions of a series of debt securities.
Covenants under our existing indentures governing our outstanding senior secured notes and the agreements governing our other indebtedness, including our existing credit facility, letter of credit facility, term loan facility, certain finance leases, our account receivable securitization facility, and our transaction support agreement with surety providers limit our ability to incur additional indebtedness. These restrictions are subject to a number of qualifications and exceptions and, under certain circumstances, debt incurred in compliance with these restrictions could be material. See “Risk Factors—Despite our Indebtedness, we may still be able to incur more debt, which could further increase the risks associated with our Indebtedness” and “Risk Factors—The terms of the indentures governing our senior secured notes and the agreements and instruments governing our other Indebtedness and surety bonding obligations impose restrictions that may limit our operating and financial flexibility” in our Annual Report on Form 10-K for the year ended December 31, 2020, as the same may be updated from time to time, that we have incorporated by reference herein. The description of the debt securities set forth in this section do not relate to our outstanding senior secured notes.
7
Table of Contents
General
We may offer the debt securities from time to time in as many distinct series as we may determine. Our senior debt securities will be our senior obligations and will rank equally in right of payment with all of our senior indebtedness. If we issue subordinated debt securities, the terms of the subordination will be described in the applicable prospectus supplement. The indenture does not limit the amount of debt securities that we may issue under that indenture. We may, without the consent of the holders of the debt securities of any series, issue additional debt securities ranking equally with, and otherwise similar in all respects to, the debt securities of the series (except for the public offering price and the issue date) so that those additional debt securities will be consolidated and form a single series with the debt securities of the series previously offered and sold.
The debt securities of each series will be issued in fully registered form without interest coupons. The debt securities of a series may be issued in whole or in part in the form of one or more global securities that will be deposited with the depository identified in the applicable prospectus supplement.
Debt securities denominated in U.S. dollars will be issued in minimum denominations of $2,000 and any integral multiples of $1,000 in excess thereof, unless otherwise specified in the applicable prospectus supplement. If the debt securities of a series are denominated in a foreign or composite currency, the applicable prospectus supplement will specify the denomination or denominations in which those debt securities will be issued.
Unless otherwise specified in the applicable prospectus supplement, we will repay the debt securities of each series at 100% of their principal amount, together with accrued and unpaid interest thereon at maturity, except if those debt securities have been previously redeemed or purchased and cancelled.
Unless otherwise specified in the applicable prospectus supplement, the debt securities of each series will not be listed on any securities exchange.
Provisions of Indenture
The indenture provides that debt securities may be issued under it from time to time in one or more series. For each series of debt securities, this prospectus and the applicable prospectus supplement will describe the following terms and conditions of that series of debt securities:
| • | the title of the series; |
| • | the maximum aggregate principal amount, if any, established for debt securities of the series; |
| • | the person to whom any interest on a debt security of the series will be payable, if other than the person in whose name that debt security (or one or more predecessor debt securities) is registered at the close of business on the regular record date for that interest; |
| • | whether the debt securities rank as senior debt, subordinated debt or any combination thereof and the terms of any subordination; |
| • | the date or dates on which the principal of any debt securities of the series will be payable or the method used to determine or extend those dates; |
| • | the rate or rates at which any debt securities of the series will bear interest, if any, the date or dates from which interest, if any, will accrue, the interest payment dates on which interest, if any, will be payable and the regular record date for interest, if any, payable on any interest payment date; |
| • | the place or places where the principal of and premium, if any, and interest on any debt securities of the series will be payable and the manner in which any payment may be made; |
| • | the period or periods within which, the price or prices at which and the terms and conditions upon which any debt securities of the series may be redeemed, in whole or in part, at our option and, if other than by a board resolution, the manner in which any election by us to redeem the debt securities will be evidenced; |
8
Table of Contents
| • | our obligation or right, if any, to redeem or purchase any debt securities of the series pursuant to any sinking fund or at the option of the holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which any debt securities of the series will be redeemed or purchased, in whole or in part, pursuant to that obligation; |
| • | if other than minimum denominations of $2,000 and any integral multiples of $1,000 in excess thereof, the denominations in which any debt securities of the series will be issuable; |
| • | if the amount of principal of or premium, if any, or interest on any debt securities of the series may be determined with reference to a financial or economic measure or index or pursuant to a formula, the manner in which those amounts will be determined; |
| • | if other than U.S. dollars, the currency, currencies or currency units in which the principal of or premium, if any, or interest on any debt securities of the series will be payable and the manner of determining the equivalent thereof in U.S. dollars for any purpose; |
| • | if the principal of or premium, if any, or interest on any debt securities of the series is to be payable, at our election or the election of the holder thereof, in one or more currencies or currency units other than that or those in which those debt securities are stated to be payable, the currency, currencies or currency units in which the principal of or premium, if any, or interest on the debt securities as to which that election is made will be payable, the periods within which and the terms and conditions upon which that election is to be made and the amount so payable (or the manner in which that amount will be determined); |
| • | if other than the entire principal amount thereof, the portion of the principal amount of any debt securities of the series which will be payable upon declaration of acceleration of the maturity thereof pursuant to the indenture; |
| • | if the principal amount payable at the stated maturity of any debt securities of the series will not be determinable as of any one or more dates prior to the stated maturity, the amount which will be deemed to be the principal amount of those debt securities as of any date for any purpose, including the principal amount thereof which will be due and payable upon any maturity other than the stated maturity or which will be deemed to be outstanding as of any date prior to the stated maturity (or, in any case, the manner in which the amount deemed to be the principal amount will be determined); |
| • | if other than by a board resolution, the manner in which any election by us to defease any debt securities of the series pursuant to the indenture will be evidenced; whether any debt securities of the series other than debt securities denominated in U.S. dollars and bearing interest at a fixed rate are to be subject to the defeasance provisions of the indenture; or, in the case of debt securities denominated in U.S. dollars and bearing interest at a fixed rate, if applicable, that the debt securities of the series, in whole or any specified part, will not be defeasible pursuant to the indenture; |
| • | if applicable, that any debt securities of the series will be issuable in whole or in part in the form of one or more global securities and, in that case, the respective depositaries for those global securities and the form of any legend or legends which will be borne by any global securities, and any circumstances in which any global security may be exchanged in whole or in part for debt securities registered, and any transfer of a global security in whole or in part may be registered, in the name or names of persons other than the depositary for that global security or a nominee thereof and any other provisions governing exchanges or transfers of global securities; |
| • | any addition to, deletion from or change in the events of default applicable to any debt securities of the series and any change in the right of the trustee or the requisite holders of those debt securities to declare the principal amount thereof due and payable; |
| • | any addition to, deletion from or change in the covenants described in this prospectus applicable to debt securities of the series; |
9
Table of Contents
| • | if the debt securities of the series are to be convertible into or exchangeable for cash and/or any securities or other property of any person (including us), the terms and conditions upon which those debt securities will be so convertible or exchangeable; |
| • | whether the debt securities of the series will be guaranteed by any Subsidiary Guarantor (as defined in this prospectus) and, if so, the identity of such Subsidiary Guarantor, the terms and conditions upon which those debt securities will be guaranteed and, if applicable, the terms and conditions upon which those guarantees may be subordinated to other indebtedness of the respective guarantors; |
| • | whether the debt securities of the series will be secured by any collateral and, if so, the terms and conditions upon which those debt securities will be secured and, if applicable, upon which those liens may be subordinated to other liens securing other indebtedness of us or of any guarantor; |
| • | if appropriate, a discussion of U.S. federal income tax consequences; |
| • | if other than the initial trustee is to act as trustee for the debt securities of such series, the name and corporate trust office of such trustee; and |
| • | any other terms of the debt securities of the series (which terms will not be inconsistent with the provisions of the indenture, except as permitted thereunder). |
Interest and Interest Rates
General
In the applicable prospectus supplement, we will designate the debt securities of a series as being either debt securities bearing interest at a fixed rate of interest or debt securities bearing interest at a floating rate of interest. Each debt security will begin to accrue interest from the date on which it is originally issued. Interest on each debt security will be payable in arrears on the interest payment dates set forth in the applicable prospectus supplement and as otherwise described below and at maturity or, if earlier, the redemption date described below. Interest will be payable to the holder of record of the debt securities at the close of business on the record date for each interest payment date, which record dates will be specified in the applicable prospectus supplement.
As used in the indenture, the term “business day” means, with respect to debt securities of a series, any day, other than a Saturday or Sunday, that is not a day on which banking institutions are authorized or obligated by law or executive order to close in the place where the principal of and premium, if any, and interest on the debt securities of that series are payable.
Fixed Rate Debt Securities
If the debt securities of a series being offered will bear interest at a fixed rate of interest, the debt securities of that series will bear interest at the annual interest rate specified on the cover page of the applicable prospectus supplement. Interest on those debt securities will be payable semi-annually in arrears on the interest payment dates for those debt securities. If the maturity date, the redemption date or an interest payment date is not a business day, we will pay principal, premium, if any, the redemption price, if any, and interest on the next succeeding business day, and no interest will accrue from and after the relevant maturity date, redemption date or interest payment date to the date of that payment. Unless otherwise specified in the applicable prospectus supplement, interest on the fixed rate debt securities will be computed on the basis of a 360-day year of twelve 30-day months.
Floating Rate Debt Securities
If the debt securities of a series being offered will bear interest at a floating rate of interest, the debt securities of that series will bear interest during each relevant interest period at the rate determined as set forth in the applicable prospectus supplement. In the applicable prospectus supplement, we will indicate any spread or spread multiplier to be applied in the interest rate formula to determine the interest rate applicable in any interest
10
Table of Contents
period. The applicable prospectus supplement will identify the calculation agent for each series of floating rate debt securities, which will compute the interest accruing on the debt securities of the relevant series.
Payment and Transfer or Exchange
Principal of and premium, if any, and interest on the debt securities of each series will be payable, and the debt securities may be exchanged or transferred, at the office or agency maintained by us for that purpose (which initially will be the corporate trust office of the trustee). Payment of principal of and premium, if any, and interest on a global security registered in the name of or held by DTC or its nominee will be made in immediately available funds to DTC or its nominee, as the case may be, as the registered holder of that global security. If any of the debt securities are not represented by a global security, payment of interest on certificated debt securities in definitive form may, at our option, be made by check mailed directly to holders at their registered addresses.
A holder may transfer or exchange any certificated debt securities in definitive form at the corporate trust office of the trustee. No service charge will be made for any registration of transfer or exchange of debt securities, but we may require payment of a sum sufficient to cover any transfer tax or other similar governmental charge payable in connection therewith.
We are not required to transfer or exchange any debt security selected for redemption for a period of 15 days before sending of a notice of redemption of the debt security to be redeemed.
The registered holder of debt securities will be treated as the owner of those debt securities for all purposes.
Subject to any applicable abandoned property law, all amounts in respect of principal of and premium, if any, or interest on the debt securities paid by us that remain unclaimed two years after that payment was due and payable will be repaid to us, and the holders of those debt securities will thereafter look solely to us for payment.
Guarantees
Each prospectus supplement will describe, as to the debt securities to which it relates, any guarantees by us or our direct and indirect subsidiaries which may guarantee the debt securities, including the terms of subordination, if any, of such guarantees. Any such guarantees will be made only by certain of our subsidiaries, will be made on a joint and several basis and will be full and unconditional.
Covenants
The indenture sets forth limited covenants, including the covenant described below, that will apply to each series of debt securities issued under the indenture, unless otherwise specified in the applicable prospectus supplement. However, these covenants do not, among other things:
| • | limit the amount of indebtedness or lease obligations that may be incurred by us or our subsidiaries; |
| • | limit our ability or that of our subsidiaries to issue, assume or guarantee debt secured by liens; or |
| • | restrict us from paying dividends or making distributions on our share capital or purchasing or redeeming our share capital. |
11
Table of Contents
Consolidation, Merger and Sale of Assets
Unless otherwise specified in the applicable prospectus supplement, the indenture provides that we may consolidate with or merge with or into any other person, and may sell, transfer, lease or convey all or substantially all of our properties and assets to another person, provided that the following conditions are satisfied:
| • | we are the continuing entity, or the resulting, surviving or transferee person (the “Successor”) is a corporation, limited liability company, partnership (including a limited partnership), trust or other entity organized and validly existing under the laws of any domestic or foreign jurisdiction and the Successor (if not us) will expressly assume, by supplemental indenture or other document or instrument, all of our obligations under the debt securities and the indenture and, for each security that by its terms provides for conversion, provide for the right to convert that security in accordance with its terms; |
| • | immediately after giving effect to that transaction, no event of default under the indenture has occurred and is continuing; and |
| • | the trustee receives from us an officer’s certificate and an opinion of counsel that the merger, consolidation, transfer, sale, lease or conveyance and the supplemental indenture, as the case may be, complies with the applicable provisions of the indenture. If we consolidate or merge with or into any other person or sell, transfer, lease or convey all or substantially all of our properties and assets in accordance with the indenture, the Successor will be substituted for us under the indenture, with the same effect as if it had been an original party to the indenture. As a result, the Successor may exercise our rights and powers under the indenture, and we will be released from all our liabilities and obligations under the indenture and the debt securities. |
Any substitution of the Successor for us might be deemed for federal income tax purposes to be an exchange of the debt securities for “new” debt securities, resulting in recognition of gain or loss for those purposes and possibly certain other adverse tax consequences to beneficial owners of the debt securities. Holders should consult their own tax advisors regarding the tax consequences of any substitution.
For purposes of this covenant, “person” means any individual, corporation, limited liability company, partnership (including limited partnership), joint venture, association, joint-stock company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity.
Events of Default
Unless otherwise specified in the applicable prospectus supplement, each of the following events are defined in the indenture as an “event of default” (whatever the reason therefor and whether or not it will be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) with respect to the debt securities of any series:
| (1) | default in the payment of any installment of interest on any debt securities of that series, which continues for 30 consecutive days after becoming due (subject to the deferral of any interest payment in case of an extension period); |
| (2) | default in the payment of principal of or premium, if any, on any debt securities of that series when it becomes due and payable at its stated maturity, upon optional redemption, upon declaration or otherwise; |
| (3) | default in the deposit of any sinking fund payment, which continues for 30 days after becoming due by the terms of any debt securities of that series; |
| (4) | default in the performance, or breach, of any covenant or agreement of ours in the indenture with respect to the debt securities of that series (other than as referred to in clause (1), (2) or (3) above), which continues for a period of 90 days (except that, in the case of a default in the performance or |
12
Table of Contents
| breach of a reporting covenant, such period shall be 180 days) after written notice to us by the trustee or to us and the trustee by the holders of at least 30% in aggregate principal amount of the outstanding debt securities of that series; |
| (5) | we, pursuant to or within the meaning of the Bankruptcy Law: |
| (A) | commence a voluntary case or proceeding; |
| (B) | consent to the entry of an order for relief against us in an involuntary case or proceeding; |
| (C) | consent to the appointment of a Custodian of us or for all or substantially all of our property; |
| (D) | make a general assignment for the benefit of our creditors; |
| (E) | file a petition in bankruptcy or answer or consent seeking reorganization or relief; or |
| (F) | consent to the filing of a petition in bankruptcy or the appointment of or taking possession by a Custodian; or take any comparable action under any foreign laws relating to insolvency; |
| (6) | a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that: |
| (A) | is for relief against us in an involuntary case, or adjudicates us insolvent or bankrupt; |
| (B) | appoints a Custodian of us or for all or substantially all of our property; or |
| (C) | orders the winding-up or liquidation of us (or any similar relief is granted under any foreign laws); and the order or decree remains unstayed and in effect for 90 days; or |
| (7) | any other event of default provided with respect to debt securities of that series occurs as specified in a supplemental indenture. “Bankruptcy Law” means Title 11, United States Code or any similar federal or state or foreign law for the relief of debtors. |
“Custodian” means any custodian, receiver, trustee, assignee, liquidator or other similar official under any Bankruptcy Law.
If an event of default with respect to debt securities of any series (other than an event of default relating to certain events of bankruptcy, insolvency, or reorganization of us) occurs and is continuing, the trustee for that series by notice to us, or the holders of at least 30% in aggregate principal amount of the outstanding debt securities of that series by notice to us and the trustee, may declare the principal of and premium, if any, and accrued and unpaid interest on all the debt securities of that series to be due and payable. Upon a declaration of this type, that principal, premium and accrued and unpaid interest will be due and payable immediately. If an event of default relating to certain events of bankruptcy, insolvency or reorganization of us occurs and is continuing, the principal of and premium, if any, and accrued and unpaid interest on the debt securities of that series will become and be immediately due and payable without any declaration or other act on the part of the trustee of that series or any holders.
The holders of not less than a majority in aggregate principal amount of the outstanding debt securities of any series may rescind a declaration of acceleration and its consequences, if we have deposited certain sums with the trustee and all events of default with respect to the debt securities of that series, other than the non-payment of the principal or interest which have become due solely by that acceleration, have been cured or waived, as provided in the indenture.
An event of default for a particular series of debt securities does not necessarily constitute an event of default for any other series of debt securities issued under the indenture.
We are required to furnish the trustee annually a statement by certain of our officers to the effect that, to the best of their knowledge, we are not in default in the fulfillment of any of our obligations under the indenture or, if there has been a default in the fulfillment of any obligation of us, specifying each default.
13
Table of Contents
No holder of any debt securities of any series will have any right to institute any judicial or other proceeding with respect to the indenture, or for the appointment of a receiver or trustee, or for any other remedy unless:
| (1) | an event of default has occurred and is continuing and that holder has given the trustee prior written notice of that continuing event of default with respect to the debt securities of that series; |
| (2) | the holders of not less than 30% of the aggregate principal amount of the outstanding debt securities of that series have requested the trustee to institute proceedings in respect of that event of default; |
| (3) | the trustee has been offered indemnity satisfactory to it against its costs, expenses and liabilities in complying with that request; |
| (4) | the trustee has failed to institute proceedings 60 days after the receipt of that notice, request and offer of indemnity; and |
| (5) | no direction inconsistent with that written request has been given for 60 days by the holders of a majority in aggregate principal amount of the outstanding debt securities of that series. |
The holders of a majority in aggregate principal amount of outstanding debt securities of a series will have the right, subject to certain limitations, to direct the time, method and place of conducting any proceeding for any remedy available to the trustee with respect to the debt securities of that series or exercising any trust or power conferred to the trustee, and to waive certain defaults. The indenture provides that if an event of default occurs and is continuing, the trustee will exercise those of its rights and powers under the indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of that person’s own affairs. The trustee will be under no obligation to exercise any of its rights or powers under the indenture at the request of any of the holders of the debt securities of a series unless they will have offered to the trustee security or indemnity satisfactory to the trustee against the costs, expenses and liabilities which might be incurred by it in compliance with that request.
Notwithstanding the foregoing, the holder of any debt security will have an absolute and unconditional right to receive payment of the principal of and premium, if any, and interest on that debt security on or after the due dates expressed in that debt security and to institute suit for the enforcement of payment.
Modification and Waivers
Modification and amendments of the indenture and the debt securities of any series may be made by us and the trustee with the consent of the holders of not less than a majority in aggregate principal amount of the outstanding debt securities of that series affected thereby; provided, however, that no modification or amendment may, without the consent of the holder of each outstanding debt security of that series affected thereby:
| • | change the stated maturity of the principal of, or installment of interest on, any debt security; |
| • | reduce the principal amount of any debt security or reduce the amount of the principal of any debt security which would be due and payable upon a declaration of acceleration of the maturity thereof or reduce the rate of interest on any debt security; |
| • | reduce any premium payable on the redemption of any debt security or change the date on which any debt security may or must be redeemed; |
| • | change the coin or currency in which the principal of or premium, if any, or interest on any debt security is payable; |
| • | impair the right of any holder to institute suit for the enforcement of any payment on or after the stated maturity of any debt security (or, in the case of redemption, on or after the redemption date); |
| • | reduce the percentage in principal amount of the outstanding debt securities, the consent of whose holders is required in order to take certain actions; |
14
Table of Contents
| • | reduce the requirements for quorum or voting by holders of debt securities in the indenture or the debt security; |
| • | modify any of the provisions in the indenture regarding the waiver of past defaults and the waiver of certain covenants by the holders of debt securities except to increase any percentage vote required or to provide that certain other provisions of the indenture cannot be modified or waived without the consent of the holder of each debt security affected thereby; |
| • | make any change that adversely affects in any material respect the right to convert or exchange any debt security or decreases the conversion or exchange rate or increases the conversion price of any convertible or exchangeable debt security, unless that decrease or increase is permitted by the terms of the debt securities; or |
| • | modify any of the above provisions. |
We and the trustee may, without the consent of any holders, modify or amend the terms of the indenture and the debt securities of any series with respect to the following:
| • | to add to our covenants for the benefit of holders of the debt securities of all or any series or to surrender any right or power conferred upon us; |
| • | to evidence the succession of another person to, and the assumption by the successor of our covenants, agreements and obligations under, the indenture pursuant to the covenant described under “—Covenants—Consolidation, Merger and Sale of Assets”; |
| • | to add any additional events of default for the benefit of holders of the debt securities of all or any series; |
| • | to add one or more guarantees for the benefit of holders of the debt securities, and to evidence the release and discharge of any guarantor from its obligations under its guarantee of debt securities and its obligations under the indenture in accordance with the terms of the indenture; |
| • | to secure the debt securities pursuant to the covenants of the indenture; |
| • | to add or appoint a successor or separate trustee or other agent; |
| • | to provide for the issuance of additional debt securities of any series; |
| • | to establish the form or terms of debt securities of any series as permitted by the indenture; |
| • | to comply with the rules of any applicable securities depository; |
| • | to provide for uncertificated debt securities in addition to or in place of certificated debt securities; |
| • | to add to, change or eliminate any of the provisions of the indenture in respect of one or more series of debt securities; provided that any such addition, change or elimination (a) shall neither (1) apply to any debt security of any series created prior to the execution of that supplemental indenture and entitled to the benefit of that provision nor (2) modify the rights of the holder of any debt security with respect to that provision or (b) shall become effective only when there is no debt security described in clause (1) outstanding; |
| • | to comply with requirements of the SEC in order to effect or maintain the qualification of the indenture under the Trust Indenture Act of 1939, as amended; |
| • | to conform any provision of the indenture, any supplemental indenture, one or more series of debt securities or any related guarantees or security documents to the description of such securities contained in our prospectus, prospectus supplement, offering memorandum or similar document with respect to the offering of the securities of such series; |
| • | to cure any ambiguity, omission, mistake, defect or inconsistency; or |
| • | to change any other provision; provided that the change does not materially adversely affect the interests of the holders of debt securities of any applicable series. |
15
Table of Contents
The holders of at least a majority in aggregate principal amount of the outstanding debt securities of any series may, on behalf of the holders of all debt securities of that series, waive compliance with certain restrictive provisions of the indenture. The holders of not less than a majority in aggregate principal amount of the outstanding debt securities of a series may, on behalf of the holders of all debt securities of that series, waive any past default and its consequences under the indenture with respect to the debt securities of that series, except a default (1) in the payment of principal of or premium, if any, or interest on debt securities of that series or (2) in respect of a covenant or provision of the indenture that cannot be modified or amended without the consent of the holder of each debt security of that series. Upon any waiver, that default will cease to exist, and any event of default arising therefrom will be deemed to have been cured, for every purpose of the indenture; however, no waiver will extend to any subsequent or other default or event of default or impair any rights consequent thereon.
Discharge, Defeasance and Covenant Defeasance
Unless otherwise specified in a prospectus supplement for any series of debt securities, we may discharge certain obligations to holders of the debt securities of a series that have not already been delivered to the trustee for cancellation and that either have become due and payable or will become due and payable within one year (or scheduled for redemption within one year) by depositing with the trustee, in trust, funds in U.S. dollars in an amount sufficient to pay the entire indebtedness including the principal and premium, if any, and interest to the date of deposit (if the debt securities have become due and payable) or to the maturity thereof or the redemption date of the debt securities of that series, as the case may be. We may direct the trustee to invest those funds in U.S. Treasury securities with a maturity of one year or less or in a money market fund that invests solely in short-term U.S. Treasury securities.
The indenture provides that we may elect either (1) to defease and be discharged from any and all obligations with respect to the debt securities of a series (except for, among other things, obligations to register the transfer or exchange of the debt securities, to replace temporary or mutilated, destroyed, lost or stolen debt securities, to maintain an office or agency with respect to the debt securities and to hold moneys for payment in trust) (“legal defeasance”) or (2) to be released from our obligations to comply with the restrictive covenants under the indenture, and any omission to comply with those obligations will not constitute a default or an event of default with respect to the debt securities of a series and clauses (4) and (7) under “—Events of Default” will no longer be applied (“covenant defeasance”). Legal defeasance or covenant defeasance, as the case may be, will be conditioned upon, among other things, the irrevocable deposit by us with the trustee, in trust, of an amount in U.S. dollars, or U.S. government obligations, or both, applicable to the debt securities of that series which through the scheduled payment of principal and interest in accordance with their terms will provide money in an amount sufficient to pay the principal of and premium, if any, and interest on the debt securities on the scheduled due dates therefor.
If we effect legal defeasance or covenant defeasance with respect to the debt securities of any series, the amount in U.S. dollars, or U.S. government obligations, or both, on deposit with the trustee will be sufficient to pay amounts due on the debt securities of that series at the time of the stated maturity but may not be sufficient to pay amounts due on the debt securities of that series at the time of the acceleration resulting from that event of default. However, we would remain liable to make payment of amounts due at the time of acceleration.
We will be required to deliver to the trustee an opinion of counsel that the deposit and related defeasance will not cause the holders and beneficial owners of the debt securities of that series to recognize income, gain or loss for federal income tax purposes. If we elect legal defeasance, that opinion of counsel must be based upon a ruling from the U.S. Internal Revenue Service or a change in law to that effect.
We may exercise our legal defeasance option notwithstanding our prior exercise of our covenant defeasance option.
16
Table of Contents
Same-Day Settlement and Payment
Unless otherwise provided in the applicable prospectus supplement, the debt securities will trade in the same-day funds settlement system of DTC until maturity or until we issue the debt securities in certificated form. DTC will therefore require secondary market trading activity in the debt securities to settle in immediately available funds. We can give no assurance as to the effect, if any, of settlement in immediately available funds on trading activity in the debt securities.
Governing Law
The indenture and the debt securities will be governed by, and construed in accordance with, the laws of the State of New York.
17
Table of Contents
General
We have the authority to issue a total of 450,000,000 shares of Common Stock, 100,000,000 shares of Preferred Stock, of which 50,000,000 were designated as Series A Convertible Preferred Stock (“Series A Preferred Stock”), and 50,000,000 shares of series common stock, par value $0.01 per share (“Series Common Stock”).
Our Board of Directors (the “Board”) is granted authority to issue both Preferred Stock and Series Common Stock of one or more series and, in connection with the creation of any such series, to fix by the resolution or resolutions providing for the issue of shares, any designation, voting powers, preferences and relative, participating, optional, or other special rights of such series, and the qualifications, limitations or restrictions attaching thereto.
We may not issue non-voting equity securities; provided, however, that such restriction shall (a) not apply beyond what is required under Section 1123(a)(6) of the Bankruptcy Code, (b) only have such force and effect for so long as Section 1123 of the Bankruptcy Code is in effect and applicable to us, and (c) in all events may be amended or eliminated in accordance with applicable law.
No Preemptive Rights
No holder of our capital stock has any preemptive right to subscribe for any shares of our capital stock issued in the future.
Common Stock
Voting Rights
Subject to the voting rights granted to Preferred Stock or Series Common Stock that may be outstanding from time to time, each share of our Common Stock shall be entitled to one vote per share, in person or by proxy, on all matters submitted to a vote for our stockholders on which the holders of Common Stock are entitled to vote. Except as otherwise required in our Fourth Amended and Restated Certificate of Incorporation, including the Certificate of Designation attached thereto (collectively, the “Charter”), our Amended and Restated Bylaws (the “Bylaws”) or by applicable law, the holders of voting stock shall vote together as one class on all matters submitted to a vote of stockholders generally. The Charter and Bylaws do not provide for cumulative voting in connection with the election of directors. Accordingly, holders of more than 50% of the shares voting will be able to elect all of the directors. However, in a contested election, a plurality of the votes shall be enough to elect a director. The holders of a majority of our voting stock issued and outstanding and entitled to vote at a meeting of stockholders, present in person or represented by proxy, constitute a quorum at any such meeting of stockholders for the transaction of business.
Dividend Rights
Subject to any dividend rights granted to Preferred Stock or Series Common Stock that may be outstanding from time to time, the holders of shares of Common Stock shall be entitled to receive such dividends and other distributions in cash, property or shares of stock as may be declared thereon by the Board from time to time out of the assets or funds legally available. Before payment of any dividend, there may be set aside out of any funds available for dividends such sum or sums as the directors, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any of our property, or for such other purpose as the directors shall think conducive to our interests, and the directors may modify or abolish any such reserve in the manner in which it was created. Our ability to pay dividends is restricted by our transaction support agreement with surety providers, which restricts our ability to pay dividends until the earlier of December 31, 2025 or the maturity of our credit agreement.
18
Table of Contents
Liquidation Rights
The holders of Common Stock shall be entitled to share ratably in the net assets remaining after payment pursuant to any liquidation rights granted to Preferred Stock or Series Common Stock that may be outstanding from time to time.
No Conversion Rights, Sinking Fund or Redemption Provisions
The Common Stock does not have any conversion rights, sinking fund provisions or redemption provisions.
Preferred Stock
Series A Convertible Preferred Stock
In connection with our emergence from our Chapter 11 cases in April 2017, we issued shares of new Series A Preferred Stock in a private placement. Under the terms of the Certificate of Designation relating to the Series A Preferred Stock, all outstanding shares of Series A Preferred Stock were mandatorily converted into shares of Common Stock on January 31, 2018. As of March 26, 2021, there are no shares of Series A Preferred Stock outstanding.
Other Preferred Stock
As of March 26, 2021, there are no shares of any series of Preferred Stock outstanding. The Charter provides that the Board may, by resolution, establish one or more series of Preferred Stock having the number of shares and relative voting rights, designations, dividend rates, liquidation and other rights, preferences and limitations as may be fixed by the Board without further stockholder approval. The holders of our Preferred Stock may be entitled to preferences over common stockholders with respect to dividends, liquidation, dissolution or our winding up in such amounts as are established by the resolutions of the Board approving the issuance of such shares.
The issuance of Preferred Stock may have the effect of delaying, deferring or preventing a change in control without further action by the holders and may adversely affect voting and other rights of holders of our securities. In addition, issuance of Preferred Stock, while providing desirable flexibility in connection with possible acquisitions and other corporate purposes, could make it more difficult for a third party to acquire a majority of the outstanding shares of our voting stock.
Series Common Stock
As of March 26, 2021, there are no shares of Series Common Stock outstanding. The Charter provides that the Board may, by resolution, establish one or more series of Series Common Stock having the number of shares and relative voting rights, designations, dividend rates, liquidation and other rights, preferences and limitations as may be fixed by them without further stockholder approval. The holders of our Series Common Stock may be entitled to preferences over holders of Common Stock and holders of Preferred Stock with respect to dividends, liquidation, dissolution or our winding up in such amounts as are established by the resolutions of our Board approving the issuance of such shares of Series Common Stock.
The issuance of Series Common Stock may have the effect of delaying, deferring or preventing a change in control without further action by the holders and may adversely affect voting and other rights of holders of our securities. In addition, issuance of Series Common Stock, while providing desirable flexibility in connection with possible acquisitions and other corporate purposes, could make it more difficult for a third party to acquire a majority of the outstanding shares of our voting stock.
19
Table of Contents
Provisions of Our Charter, Bylaws and Delaware Law That May Have an Anti-Takeover Effect
Preferred Stock and Series Common Stock
See above under “Preferred Stock” and “Series Common Stock.”
Special Meetings of Stockholders
The Charter and Bylaws provide that special meetings of the stockholders may be called by our Chairman of the Board, Chief Executive Officer, President or the Board. A special meeting of stockholders shall also be called by our secretary upon the written request of stockholders entitled to cast at least 40% of all votes entitled to be cast at the special meeting.
Advance Notice of Stockholder Meetings
Notice of any annual or special meeting of stockholders, stating the place (if any), date and hour of the meeting shall be given to each stockholder entitled to notice of such meeting not less than ten nor more than 60 days before the date of such meeting.
Advance Notice for Nominations or Stockholder Proposals at Meetings
The Bylaws also prescribe the procedure that a stockholder must follow to nominate directors or bring business before stockholder meetings.
Nominations of persons for election to the Board and the proposal of business at stockholder meetings may be made by (1) us, (2) the Chairman of the Board or (3) any stockholder entitled to vote and who makes the nomination or proposal pursuant to timely notice in proper written form to our Secretary in compliance with the procedures set forth in the Bylaws. For a stockholder to nominate a candidate for director or to bring other business before a meeting, we must receive notice not less than 90 days nor more than 120 days prior to the first anniversary of the preceding year’s annual meeting; provided, however, that in the event that the date of the annual meeting is advanced by more than 20 days, or delayed by more than 70 days from such anniversary date, notice by the stockholder must be so delivered not earlier than 120 days prior to such annual meeting and not later than the close of business on the later of the 90th day prior to such annual meeting or the 10th day following the day on which public announcement of the date of such meeting is made. Notice of a nomination for director must also include a description of various matters regarding the nominee and the shareholder giving notice, as set forth in the Bylaws.
In addition, the Bylaws permit a stockholder, or group of no more than 20 stockholders meeting specified eligibility requirements, to include director nominees in our proxy materials for annual meetings. In order to be eligible, stockholders must have owned 3% or more of the outstanding Common Stock continuously for at least three years. Requests to include stockholder-nominated candidates in our proxy materials must be delivered to us within the time periods applicable to stockholder notices of nominations as described in the preceding paragraph. The maximum number of stockholder nominated candidates is the greater of two directors or the largest whole number that does not exceed 20% of the number of directors in office as of last day on which a notice under these provisions is delivered. The Bylaws provide a process to determine which candidates under these provisions exceed the maximum permitted number. Each stockholder seeking to include a director nominee in our proxy materials pursuant to these provisions is required to provide certain information, as set forth in the Bylaws. A stockholder nominee must also meet certain eligibility requirements, as set forth in the Bylaws.
At a meeting of stockholders, only such business (other than the nomination of candidates for election as directors in accordance with the Bylaws) will be conducted or considered as is properly brought before the annual meeting or a special meeting as specified in the Bylaws.
20
Table of Contents
Action by Written Consent
The Charter prohibits action by written consent by stockholders.
Directors
The Board shall consist of at least three members and no more than 15, and may be fixed from time to time by a resolution adopted by the Board or by the stockholders. As of March 26, 2021, there are eleven members of the Board. Directors need not be stockholders but are subject to our policy that requires that they hold shares of Common Stock having a value equal to a specified multiple of their annual retainer.
Each director to be elected by stockholders shall be elected by a majority vote of the stockholders, except that if the number of nominees exceeds the number of directors to be elected, the directors shall be elected by a plurality of votes. There is no cumulative voting in the election of directors. Directors may be removed, with or without cause, by a majority vote of our voting stock. Any newly created directorship on the Board that results from an increase in the number of directors and any vacancy occurring in the Board shall be filled only by a majority of the directors then in office, although less than a quorum, or by a sole remaining director. All directors will be in one class and serve for a term ending at the annual meeting following the annual meeting at which the director was elected.
The Board is authorized to adopt, amend, alter or repeal the Bylaws by the affirmative vote of a majority of the directors present at any regular or special meeting, subject to the power of the voting stock to adopt, amend, alter or repeal the Bylaws made by the Board. Notwithstanding anything in the Charter or Bylaws to the contrary, a vote of holders of 75% or more of our voting stock is required to adopt, amend, alter or repeal any provision inconsistent with the foregoing or the manner in which action may be taken by voting stock.
Delaware Law
The Company is a Delaware corporation subject to Section 203 of the Delaware General Corporation Law. Section 203 provides that, subject to certain exceptions specified in the law, a Delaware corporation shall not engage in certain “business combinations” with any “interested stockholder” for a three-year period following the time that the stockholder became an interested stockholder unless:
| • | prior to such time, the Board approved either the business combination or the transaction that resulted in the stockholder becoming an interested stockholder; |
| • | upon consummation of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of our voting stock outstanding at the time the transaction commenced, excluding certain shares; or |
| • | at or subsequent to that time, the business combination is approved by the Board and authorized at an annual or special meeting of stockholders, and not by written consent, by the affirmative vote of at least 66 2/3% of the outstanding voting stock that is not owned by the interested stockholder. |
Generally, a “business combination” includes a merger, asset or stock sale or other transaction resulting in a financial benefit to the interested stockholder. Subject to certain exceptions, an “interested stockholder” is a person who, together with that person’s affiliates and associates, owns, or within the previous three years did own, 15% or more of our outstanding voting stock.
Under certain circumstances, Section 203 makes it more difficult for a person who would be an “interested stockholder” to effect various business combinations for a three-year period. The provisions of Section 203 may encourage companies or other persons interested in acquiring us to negotiate in advance with the Board because the stockholder approval requirement would be avoided if the Board approves either the business combination or the transaction that results in the stockholder becoming an interested stockholder. These provisions also may have the effect of preventing changes in the Board and may make it more difficult to accomplish transactions that stockholders may otherwise deem to be in their best interests.
21
Table of Contents
Registrar and Transfer Agent
The registrar and transfer agent for the Common Stock is American Stock Transfer & Trust Company.
Listing
The Common Stock is listed on the NYSE under the symbol “BTU.”
22
Table of Contents
The following description of the warrant agreements summarizes certain general terms that will apply to any warrants that we may offer. The description is not complete, and we refer you to the warrant agreements, which will be filed with the SEC promptly after the offering of any warrants and will be available as described under the heading “Incorporation of Certain Documents by Reference” in this prospectus.
We may issue warrants to purchase debt securities, common stock, preferred stock or other securities. We may issue warrants independently or as part of a unit with other securities. Warrants sold with other securities as a unit may be attached to or separate from the other securities. We will issue warrants under one or more warrant agreements between us and a warrant agent that we will name in the applicable prospectus supplement.
The prospectus supplement relating to any warrants we may offer will include specific terms relating to the offering, including a description of any other securities sold together with the warrants. These terms will include some or all of the following:
| • | the title of the warrants; |
| • | the aggregate number of warrants offered; |
| • | the price or prices at which the warrants will be issued; |
| • | the currency or currencies, including composite currencies, in which the prices of the warrants may be payable; |
| • | the designation, number and terms of the debt securities, common stock, preferred stock or other securities or rights, including rights to receive payment in cash or securities based on the value, rate or price of one or more specified commodities, currencies or indices, purchasable upon exercise of the warrants and procedures by which those numbers may be adjusted; the exercise price of the warrants and the currency or currencies, including composite currencies, in which such price is payable; |
| • | the dates or periods during which the warrants are exercisable; |
| • | the designation and terms of any securities with which the warrants are issued as a unit; |
| • | if the warrants are issued as a unit with another security, the date on and after which the warrants and the other security will be separately transferable; |
| • | if the exercise price is not payable in U.S. dollars, the foreign currency, currency unit or composite currency in which the exercise price is denominated; |
| • | any minimum or maximum amount of warrants that may be exercised at any one time; |
| • | any terms relating to the modification of the warrants; and |
| • | any other terms of the warrants, including terms, procedures and limitations relating to the transferability, exchange, exercise or redemption of the warrants. |
Warrants issued for securities other than our debt securities, common stock or preferred stock will not be exercisable until at least one year from the date of sale of the warrant.
23
Table of Contents
The following descriptions of the units and any applicable underlying security or pledge or depository arrangements summarize certain general terms that will apply to the applicable agreements of any units we may offer. These descriptions do not restate those agreements in their entirety. We urge you to read the applicable agreements because they, and not the summaries, define your rights as holders of the units. We will make copies of the relevant agreements available as described under the heading “Incorporation of Certain Documents by Reference” in this prospectus.
As specified in the applicable prospectus supplement, we may issue units comprised of one or more of the other securities described in this prospectus in any combination. Each unit may also include debt obligations of third parties, such as U.S. Treasury securities. Each unit will be issued so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights and obligations of a holder of each included security. The prospectus supplement will describe:
| • | the designation and terms of the units and of the securities comprising the units, including whether and under what circumstances the securities comprising the units may be held or transferred separately; |
| • | a description of the terms of any unit agreement governing the units; |
| • | a description of the provisions for the payment, settlement, transfer or exchange of the units; and |
| • | whether the units will be issued in fully registered or global form. |
24
Table of Contents
We may issue guarantees of debt securities.
The applicable prospectus supplement will describe the terms of any guarantees. The guarantees will be issued pursuant to documents to be issued by us. You should read the particular terms of the documents, which will be described in more detail in the applicable prospectus supplement. The particular terms of any guarantees offered by any prospectus supplement, and the extent to which the general provisions summarized below may apply to the offered securities, will be described in the prospectus supplement.
A prospectus supplement relating to any series of guarantees being offered will include specific terms relating to the offering. They will include, where applicable:
| • | the securities to which the guarantees apply; |
| • | whether the guarantees are senior or subordinate to other guarantees or debt; |
| • | the terms under which the guarantees may be amended, modified, waived, released or otherwise terminated, if different from the provisions applicable to the guaranteed debt securities; and |
| • | any additional term of the guarantees. |
25
Table of Contents
We may sell the securities offered by this prospectus from time to time:
| • | to or through underwriting syndicates represented by managing underwriters; |
| • | through one or more underwriters without a syndicate for them to offer and sell to the public; |
| • | through dealers or agents; |
| • | in “at the market offerings” to or through a market maker or into an existing trading market, or a securities exchange or otherwise; |
| • | to one or more purchasers directly; or |
| • | through a combination of any of these methods of sale or by any other legally available means. |
A distribution of the securities offered by this prospectus may also be effected through the issuance of derivative securities, including without limitation, warrants, subscriptions, exchangeable securities, forward delivery contracts and the writing of options. In addition, the manner in which we may sell some or all of the securities covered by this prospectus includes, without limitation, through:
| • | a block trade in which a broker-dealer will attempt to sell as agent, but may position or resell a portion of the block, as principal, in order to facilitate the transaction; |
| • | purchases by a broker-dealer, as principal, and resale by the broker-dealer for its account; |
| • | ordinary brokerage transactions and transactions in which a broker solicits purchasers; or |
| • | privately negotiated transactions. |
We may also enter into derivative, hedging, forward sale, option or other types of transactions. For example, we may:
| • | enter into transactions with a broker-dealer or affiliate thereof in connection with which such broker-dealer or affiliate will engage in short sales of, or maintain short positions in, Common Stock pursuant to this prospectus, in which case such broker-dealer or affiliate may use Common Stock received from us to close out or hedge its short positions; |
| • | sell securities short and redeliver such shares to close out or hedge our short positions; |
| • | enter into option or other types of transactions that require us to deliver Common Stock to a broker-dealer or an affiliate thereof, who will then resell or transfer the Common Stock under this prospectus; or |
| • | loan or pledge Common Stock to a broker-dealer or an affiliate thereof or others, who may sell the loaned shares or, in an event of default in the case of a pledge, sell the pledged shares pursuant to this prospectus. |
In addition, we may enter into derivative, hedging, forward sale, option or other types of transactions with third parties, or sell securities not covered by this prospectus to third parties, through a stock exchange, including block trades or ordinary broker’s transactions, or through broker-dealers acting either as principal or agent, or through an underwritten public offering, through privately negotiated transactions or through a combination of any such methods of sale. In connection with such a transaction, the third parties may sell securities covered by and pursuant to this prospectus and an applicable prospectus supplement or pricing supplement, as the case may be. If so, the third party may use securities borrowed from us or others to settle such sales and may use securities received from us to close out or hedge any related short positions. We may also loan or pledge securities covered by this prospectus and an applicable prospectus supplement to third parties, who may sell the loaned securities or, in an event of default in the case of a pledge, sell the pledged securities pursuant to this prospectus and the applicable prospectus supplement or pricing supplement, as the case may be.
26
Table of Contents
If indicated in an applicable prospectus supplement, we may sell shares of our Common Stock under a direct stock purchase and dividend reinvestment plan. The terms of any such plan will be set forth in the applicable prospectus supplement.
A prospectus supplement with respect to each series of securities will state the terms of the offering of the securities, including:
| • | the terms of the offering; |
| • | the name or names of any underwriters, dealers or agents involved in the sale of the offered securities and the amount of securities underwritten or purchased by each of them, if any; |
| • | the purchase price and the proceeds to us from that sale; |
| • | any delayed delivery arrangements; |
| • | the terms of any subscription rights; |
| • | any underwriting discounts and commissions or agents’ fees and other items constituting underwriters’ or agents’ compensation; |
| • | any initial public offering price; |
| • | any discounts or concessions allowed or reallowed or paid to dealers; and |
| • | any securities exchanges on which the offered securities may be listed. |
The offer and sale of the securities described in this prospectus by us or the underwriters or the third parties described above may be effected from time to time in one or more transactions, including privately negotiated transactions, either:
| • | at a fixed price or prices, which may be changed; |
| • | at market prices prevailing at the time of sale, including in “at the market offerings”; |
| • | at prices related to the prevailing market prices; or |
| • | at negotiated prices. |
Underwriting Compensation
Any public offering price and any fees, discounts, commissions, concessions or other items constituting compensation allowed or reallowed or paid to underwriters, dealers, agents or remarketing firms may be changed from time to time. Underwriters, dealers, agents and remarketing firms that participate in the distribution of the offered securities may be “underwriters” as defined in the Securities Act. Any discounts or commissions they receive from us and any profits they receive on the resale of the offered securities may be treated as underwriting discounts and commissions under the Securities Act. We will identify any underwriters, agents or dealers and describe their fees, commissions or discounts in the applicable prospectus supplement or pricing supplement, as the case may be.
Underwriters and Agents
If underwriters are used in the sale, the offered securities will be acquired by the underwriters for their own account. The underwriters may resell the offered securities in one or more transactions, including negotiated transactions. The offered securities may be offered through an underwriting syndicate represented by one or more managing underwriters or through one or more underwriter(s). Unless otherwise specified in connection with any particular offering of securities, the obligations of the underwriters to purchase the offered securities will be subject to certain conditions contained in an underwriting agreement that we will enter into with the underwriters at the time of the sale to them. The underwriters will be obligated to purchase all of the offered securities if any are purchased, unless otherwise specified in connection with any particular offering of securities. Any initial public offering price and any discounts or concessions allowed, reallowed or paid to dealers may be changed from time to time.
27
Table of Contents
We may designate agents to sell the offered securities. Unless otherwise specified in connection with any particular offering of securities, the agents will agree to use their best efforts to solicit purchases for the period of their appointment. We may also sell the offered securities to one or more remarketing firms, acting as principals for their own accounts or as agents for us. These firms will remarket the offered securities upon purchasing them in accordance with a redemption or repayment pursuant to the terms of the offered securities. A prospectus supplement or pricing supplement, as the case may be, will identify any remarketing firm and will describe the terms of its agreement, if any, with us, and its compensation.
In connection with offerings made through underwriters or agents, we may enter into agreements with such underwriters or agents pursuant to which we receive our outstanding securities in consideration for the securities being offered to the public for cash. In connection with these arrangements, the underwriters or agents may also sell securities covered by this prospectus to hedge their positions in these outstanding securities, including in short sale transactions. If so, the underwriters or agents may use the securities received from us under these arrangements to close out any related open borrowings of securities.
Dealers
We may sell the offered securities to dealers as principals. We may negotiate and pay dealers’ commissions, discounts or concessions for their services. The dealer may then resell such securities to the public either at varying prices to be determined by the dealer or at a fixed offering price agreed to with us at the time of resale. Dealers engaged by us may allow other dealers to participate in resales.
Direct Sales
We may choose to sell the offered securities directly to multiple purchasers or a single purchaser. In this case, no underwriters or agents would be involved.
Market Making, Stabilization and Other Transactions
Each series of securities will be a new issue of securities and will have no established trading market, other than our Common Stock, which is listed on the NYSE. Any Common Stock sold pursuant to a prospectus supplement will be listed on the NYSE, subject to official notice of issuance. Any underwriters to whom we sell securities for public offering and sale may make a market in the securities, but such underwriters will not be obligated to do so and may discontinue any market making at any time without notice. The securities, other than Common Stock, may or may not be listed on a national securities exchange, and any such listing if pursued will be described in the applicable prospectus supplement.
To facilitate the offering of the securities, certain persons participating in the offering may engage in transactions that stabilize, maintain, or otherwise affect the price of the securities. This may include over-allotments or short sales of the securities, which involves the sale by persons participating in the offering of more securities than we sold to them. In these circumstances, these persons would cover the over-allotments or short positions by making purchases in the open market or by exercising their over-allotment option. In addition, these persons may stabilize or maintain the price of the debt securities by bidding for or purchasing debt securities in the open market or by imposing penalty bids, whereby selling concessions allowed to dealers participating in the offering may be reclaimed if securities sold by them are repurchased in connection with stabilization transactions. The effect of these transactions may be to stabilize or maintain the market price of the securities at a level above that which might otherwise prevail in the open market. These transactions may be discontinued at any time.
28
Table of Contents
Indemnification; Other Relationships
We may agree to indemnify underwriters, dealers, agents and remarketing firms against certain civil liabilities, including liabilities under the Securities Act and to make contribution to them in connection with those liabilities. Underwriters, dealers, agents and remarketing firms, and their affiliates, may engage in transactions with, or perform services for us, and our affiliates, in the ordinary course of business, including commercial banking transactions and services.
29
Table of Contents
The validity of the securities offered by this prospectus will be passed upon for us by Womble Bond Dickinson (US) LLP, Charlotte, North Carolina and by Dentons Bingham Greenebaum LLP, Evansville, Indiana. Womble Bond Dickinson (US) LLP and any counsel for any underwriters, dealers or agents will rely on Dentons Bingham Greenebaum LLP as to certain matters of Indiana law.
The consolidated financial statements of Peabody Energy Corporation appearing in Peabody Energy Corporation’s Annual Report (Form 10-K) for the year ended December 31, 2020 have been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in their report thereon, included therein, and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such report given on the authority of such firm as experts in accounting and auditing.
ABOUT THE SUBSIDIARY GUARANTORS
If specified in any accompanying prospectus supplement respecting a series of debt securities, certain Subsidiary Guarantors may jointly and severally, fully, irrevocably and unconditionally guarantee our payment obligations under any series of debt securities offered by this prospectus. For financial information concerning our Subsidiary Guarantors, please refer to “Summarized Guarantor Financial Information.”
For additional information as to our and our subsidiaries’ business, properties, and financial condition, please refer to the documents cited in “Where You Can Find More Information.”
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports and other information with the Securities and Exchange Commission, or SEC. You may access and read our SEC filings, through the SEC’s Internet site at www.sec.gov. This site contains reports and other information that we file electronically with the SEC. Copies of certain information filed by us with the SEC are also available to the public on our website at http://www.peabodyenergy.com. You may request copies of our filings, at no cost, by telephone at (314) 342-3400 or by mail at: Peabody Energy Corporation, 701 Market Street, Suite 700, St. Louis, Missouri 63101, Attention: Investor Relations. Information contained on our website is not part of this prospectus or any prospectus supplement.
We have filed with the SEC a registration statement under the Securities Act with respect to the securities offered by this prospectus. This prospectus, which constitutes part of the registration statement, does not contain all of the information presented in the registration statement and its exhibits and schedules. Our descriptions in this prospectus of the provisions of documents filed as exhibits to the registration statement or otherwise filed with the SEC are only summaries of the terms of those documents that we consider material. If you want a complete description of the content of the documents, you should obtain the documents yourself by following the procedures described above.
30
Table of Contents
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
We have elected to “incorporate by reference” certain information into this prospectus, which means we can disclose important information to you by referring you to another document filed separately with the SEC. The information incorporated by reference is deemed to be part of this prospectus.
We incorporate by reference our:
| • | Annual Report on Form 10-K for the year ended December 31, 2020, as filed on February 23, 2021; |
| • |
| • | Current Reports on Form 8-K filed with the SEC on January 4, 2021, January 11, 2021, January 19, 2021, January 29, 2021, January 29, 2021, February 1, 2021, February 1, 2021, February 5, 2021, March 5, 2021 and March 18, 2021, including any amendments thereto; provided, however, we do not incorporate by reference any information furnished under Item 2.02 or Item 7.01 or any exhibits furnished in connection therewith and included in any of these Current Reports on Form 8-K; and |
| • | Form 8-A filed with the SEC on April 3, 2017, as amended by the description of our common stock contained in Exhibit 4.7 to our Annual Report on Form 10-K for the year ended December 31, 2019, and as amended by any subsequent amendment or report filed for the purpose of updating the description. |
We are also incorporating by reference all other reports that we file in the future with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act until the date of the completion of the offerings to which this prospectus relates; provided, however, that we are not incorporating any information furnished under either Item 2.02 or Item 7.01 of any Current Report on Form 8-K. Any statement contained in a document incorporated or deemed to be incorporated by reference in this prospectus will be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained in this prospectus or in any other subsequently filed document which also is or is deemed to be incorporated by reference in this prospectus modifies or supersedes that statement. Any statement that is modified or superseded will not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
31
Table of Contents
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table reflects an itemization of all fees and expenses, other than underwriting discounts and commissions, incurred or expected to be incurred by Peabody Energy Corporation in connection with the issuance and distribution of the securities being registered hereby. All but the Securities and Exchange Commission registration fee are estimates and remain subject to future contingencies.
| Securities and Exchange Commission registration fee |
$ | 218,200 | ||
| Legal fees and expenses |
(1 | ) | ||
| Accounting fees and expenses |
(1 | ) | ||
| Trustees’ fees and expenses |
(1 | ) | ||
| Printing and engraving fees |
(1 | ) | ||
| Blue Sky fees and expenses |
(1 | ) | ||
| Miscellaneous expenses |
(1 | ) | ||
|
|
|
|||
| Total |
$ | (1 | ) |
| (1) | Estimated expenses are not presently known. The applicable prospectus supplement or one or more Current Reports on Form 8-K, which will be incorporated by reference, will set forth the estimated amount of such expenses payable in respect of any offering of the Securities. |
Item 15. Indemnification of Directors and Officers.
Delaware
Delaware Corporation Registrants
Peabody Energy Corporation, Big Sky Coal Company, BTU Western Resources, Inc., Kayenta Mobile Home Park, Inc., Peabody IC Funding, Corp., Peabody International Investments, Inc., Peabody International Services, Inc., Peabody Investments Corp., Peabody Venezuela Coal Corp., Peabody Western Coal Company, and Shoshone Coal Corporation (the “Delaware Corporation Registrants”) are incorporated in the State of Delaware. Section 145 of the Delaware General Corporation Law provides that, among other things, a corporation may indemnify directors and officers as well as other employees and agents of the corporation against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with threatened, pending or completed actions, suits or proceedings, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation, a “derivative action”), if they acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe their conduct was unlawful. A similar standard is applicable in the case of derivative actions, except that indemnification only extends to expenses (including attorneys’ fees) incurred in connection with the defense or settlement of such actions, and the statute requires court approval before there can be any indemnification where the person seeking indemnification has been found liable to the corporation. The statute provides that it is not exclusive of other indemnification that may be granted by a corporation’s by-laws, disinterested director vote, stockholder vote, agreement or otherwise.
Article Seventh of our fourth amended and restated certificate of incorporation (as amended, including the Certificate of Amendment) and Article IV of our amended and restated bylaws requires indemnification to the fullest extent permitted by Delaware law. Our fourth amended and restated certificate of incorporation requires indemnification and the advancement of expenses incurred by officers or directors in relation to any action, suit or proceeding. Similar provisions are contained in the certificate of incorporation and/or bylaws of the other Delaware Corporation Registrants.
II-1
Table of Contents
Section 102(b)(7) of the Delaware General Corporation Law permits a corporation to provide in its certificate of incorporation that a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duties as a director, except for liability (i) for any transaction from which the director derives an improper personal benefit, (ii) for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law (certain illegal distributions) or (iv) for any breach of a director’s duty of loyalty to the company or its stockholders. Article Seventh of our fourth amended and restated certificate of incorporation (as amended, including the Certificate of Amendment) includes such a provision.
In connection with our existing indemnification procedures and policies and the rights provided for by our fourth amended and restated certificate of incorporation and amended and restated by-laws, we have executed indemnification agreements with our directors and executive officers.
Pursuant to those agreements, to the fullest extent permitted by the laws of the State of Delaware, we have agreed to indemnify those persons against any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that the indemnified person is or was or has agreed to serve at our request as a director, officer, employee or agent, or while serving as our director or officer, is or was serving or has agreed to serve at our request as a director, officer, employee or agent (which, for purposes of the indemnification agreements, includes a trustee, partner, manager or a position of similar capacity) of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, or by reason of any action alleged to have been taken or omitted in such capacity. The indemnification provided by these agreements is from and against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the indemnified person or on his or her behalf in connection with the action, suit or proceeding and any appeal therefrom, but shall only be provided if the indemnified person acted in good faith and in a manner the indemnified person reasonably believed to be in or not opposed to our best interests, and, with respect to any criminal action, suit or proceeding, had no reasonable cause to believe the indemnified person’s conduct was unlawful.
We have obtained officers’ and directors’ liability insurance which insures against liabilities that our officers and directors, in such capacities, may incur.
Delaware LLC Registrants
American Land Development, LLC, American Land Holdings of Colorado, LLC, American Land Holdings of Illinois, LLC, American Land Holdings of Indiana, LLC, American Land Holdings of Kentucky, LLC, COALSALES II, LLC, Conservancy Resources, LLC, El Segundo Coal Company, LLC, Hayden Gulch Terminal, LLC, Hillside Recreational Lands, LLC, Moffat County Mining, LLC, New Mexico Coal Resources, LLC, NGS Acquisition Corp., LLC, Peabody America, LLC, Peabody Asset Holdings, LLC, Peabody Bear Run Mining, LLC, Peabody Bear Run Services, LLC, Peabody Caballo Mining, LLC, Peabody Cardinal Gasification, LLC, Peabody China, LLC, Peabody COALSALES, LLC, Peabody COALTRADE, LLC, Peabody Colorado Operations, LLC, Peabody Colorado Services, LLC, Peabody Coulterville Mining, LLC, Peabody Development Company, LLC, Peabody Electricity, LLC, Peabody Employment Services, LLC, Peabody Gateway North Mining, LLC, Peabody Gateway Services, LLC, Peabody Global Funding, LLC, Peabody Global Holdings, LLC, Peabody Holding Company, LLC, Peabody Illinois Services, LLC, Peabody Indiana Services, LLC, Peabody International Holdings, LLC, Peabody Midwest Management Services, LLC, Peabody Midwest Operations, LLC, Peabody Midwest Services, LLC, Peabody Mongolia, LLC, Peabody Natural Gas, LLC, Peabody New Mexico Services, LLC, Peabody Operations Holding, LLC, Peabody Powder River Mining, LLC, Peabody Powder River Operations, LLC, Peabody Powder River Services, LLC, Peabody Rocky Mountain Management Services, LLC, Peabody Rocky Mountain Services, LLC, Peabody Sage Creek Mining, LLC, Peabody School Creek Mining, LLC, Peabody Services Holdings, LLC, Peabody Southeast Mining, LLC, Peabody Twentymile Mining, LLC, Peabody Venture Fund, LLC, Peabody-Waterside Development, L.L.C., Peabody Wild Boar Mining, LLC, Peabody Wild Boar Services, LLC, Peabody Williams Fork Mining, LLC, Peabody Wyoming
II-2
Table of Contents
Services, LLC, PEC Equipment Company, LLC, Sage Creek Holdings, LLC, Sage Creek Land & Reserves, LLC, Seneca Coal Company, LLC, Seneca Property, LLC, and Twentymile Coal, LLC, (the “Delaware LLC Registrants”) are organized in the State of Delaware. Delaware limited liability companies are permitted by Section 18-108 of the Delaware Limited Liability Company Act, subject to such standards and restrictions, if any, as are set forth in each limited liability company agreement, to indemnify and hold harmless any member or manager or other person from and against any and all claims and demands whatsoever.
The Operating Agreements of the Delaware LLC Registrants generally provide that the company shall indemnify the member, each director, manager, officer, employee, shareholder, controlling person, agent and representative of the LLC or the member with respect to claims arising out of or incidental to the business or activities related to the LLC, if such indemnitee determined in good faith that such conduct was in the best interest of the LLC and such indemnitee’s conduct did not constitute fraud, gross negligence or willful misconduct and was within the scope of the indemnitee’s authority.
Each Delaware limited liability company may purchase and maintain insurance on behalf of any director or officer of such limited liability company against any liability asserted against such person, whether or not such limited liability company would have the power to indemnify such person against such liability under the respective provisions of the limited liability company agreement or otherwise.
Delaware General Partnership Registrant
Peabody Natural Resources Company (the “Delaware General Partnership Registrant”) is organized in the state of Delaware. Section 15-110 of the Delaware Revised Uniform Partnership Act provides that, subject to such standards and restrictions, if any, as are set forth in its partnership agreement, a partnership may, and shall have the power to, indemnify and hold harmless any partner or other person from and against any and all claims and demands whatsoever.
The Third Amended and Restated Partnership Agreement of Peabody Natural Resources Company provides that each partner will indemnify and hold harmless the other partner and the partnership against any indebtedness or obligation of the other incurred either before or after the execution of the agreement, except for those responsibilities, liabilities, indebtedness or obligations assumed or incurred by the partnership pursuant to the terms of the agreement.
Illinois
Illinois Corporation Registrant
Big Ridge, Inc. (the “Illinois Corporation Registrant”) is incorporated in the State of Illinois. The bylaws of Big Ridge, Inc. provide for the indemnification of directors and officers consistent with the provisions of the Illinois Business Corporation Act (“IBCA”), as amended, as it currently exists or may hereafter be amended. Section 8.75 of the IBCA provides that a corporation may indemnify any person who, by reason of the fact that such person is or was a director, officer, employee or agent of such corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, was or is a party, or is threatened to be made a party, to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, other than one brought on behalf of the corporation, against actual and reasonable expenses (including attorneys’ fees), judgments, fines and settlement payments incurred in connection with the action, suit or proceeding, if such person acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of such corporation and, in criminal actions or proceedings, in addition, had no reasonable cause to believe his or her conduct was unlawful. In the case of actions on behalf of the corporation, indemnification may extend only to actual and reasonable expenses (including attorneys’ fees) incurred in connection with the defense or settlement of such action or suit and only if such person acted in good faith and in a manner he or she
II-3
Table of Contents
reasonably believed to be in, or not opposed to, the best interests of the corporation, provided that no such indemnification is permitted in respect of any claim, issue or matter as to which such person is adjudged to be liable to the corporation except to the extent that the adjudicating court otherwise provides. To the extent that a present or former director, officer or employee of the corporation has been successful in defending any such action, suit or proceeding (even one on behalf of the corporation) or in defense of any claim, issue or matter therein, such person is entitled to indemnification for actual and reasonable expenses (including attorneys’ fees) incurred by such person in connection therewith if the person acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the corporation. The indemnification provided for by the IBCA is not exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any bylaw, agreement, vote of shareholders or disinterested directors or otherwise, and a corporation may maintain insurance on behalf of any person who is or was a director, officer, employee or agent against liabilities for which indemnification is not expressly provided by the IBCA.
Indiana
Indiana LLC Registrants
Kentucky United Coal, LLC, Peabody Arclar Mining, LLC, Peabody Midwest Mining, LLC and United Minerals Company, LLC, (the “Indiana LLC Registrants”) are organized in the State of Indiana. Section 23-18-2-2 of the Indiana Business Flexibility Act (“Indiana LLC Law”) provides that, unless the limited liability company’s articles of organization provide otherwise, every limited liability company has the power to indemnify and hold harmless any member, manager, agent, or employee from and against any and all claims and demands, except in the case of an action or failure to act by the member, agent, or employee which constitutes willful misconduct or recklessness and subject to any standards and restrictions set forth in a written operating agreement. Section 23-18-4-4 of the Indiana LLC Law provides that a written operating agreement may provide for indemnification of a member or manager for judgments, settlements, penalties, fines, or expenses incurred in a proceeding to which a person is a party because the person is or was a member or manager.
The Operating Agreements of the Indiana LLC Registrants provide that each shall indemnify each member, director, manager, officer, employee, shareholder, controlling person, agent and representative of the Indiana LLC Registrants and their Members, and such person’s heirs executors or administrators, from and against any all losses, claims, demands, damages, liabilities (joint or several), reasonable expenses of any nature, judgments, fines, reasonable settlements and other amounts reasonably arising from any and all claims (unless asserted by the Indiana LLC Registrants against the indemnitee) in which the indemnitee may be involved, or threatened to be involved, arising from conduct of an indemnitee in furtherance of or incidental to the activities of the Indiana LLC Registrants, regardless of whether such indemnitee continues in such capacity at the time such liability or expense is paid or incurred, if such indemnitee possessed a good faith belief that such conduct was within the scope of indemnitee’s authority and would inure to the benefit of the Indiana LLC Registrant and if such indemnitee’s conduct did not constitute fraud or willful misconduct. All recoveries for claims of indemnity shall be limited to the assets of the applicable Indiana LLC Registrant; and there shall be no recourse against a member of an Indiana LLC Registrant.
Item 16.
(a) Exhibits
| Exhibit |
Description of Exhibit | |
| 1.1** | Form of Underwriting Agreement (Debt) | |
| 1.2** | Form of Underwriting Agreement (Equity) | |
| 1.3** | Form of Underwriting Agreement (Preferred Stock) | |
II-4
Table of Contents
| * | Filed herewith. |
| ** | To be filed, if necessary, by amendment or as an exhibit to a document to be incorporated by reference herein in connection with an offering. |
Item 17. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended (the “Securities Act”);
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities
II-5
Table of Contents
offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Securities and Exchange Commission (the “Commission”) pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided, however, that paragraphs (1)(i), (1)(ii) and (1)(iii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is a part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act to any purchaser:
(i) Each prospectus filed by a registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(5) That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
II-6
Table of Contents
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(6) That, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(b) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question of whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
II-7
Table of Contents
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri as of March 26, 2021.
| PEABODY ENERGY CORPORATION | ||
| By: | /s/ Glenn L. Kellow | |
| Glenn L. Kellow | ||
| President and Chief Executive Officer | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Glenn L. Kellow | President and Chief Executive Officer, Director | |
| Glenn L. Kellow | (Principal Executive Officer) | |
| /s/ Mark A. Spurbeck | Executive Vice President and Chief Financial Officer | |
| Mark A. Spurbeck | (Principal Financial and Accounting Officer) | |
| /s/ Samantha Algaze | Director | |
| Samantha Algaze | ||
| /s/ Andrea Bertone | Director | |
| Andrea Bertone | ||
| /s/ Bill Champion | Director | |
| Bill Champion | ||
| /s/ Nicholas Chirekos | Director | |
| Nicholas Chirekos | ||
| /s/ Stephen Gorman | Director | |
| Stephen Gorman | ||
II-8
Table of Contents
| Signature |
Title | |
| /s/ Joe Laymon | Director | |
| Joe Laymon | ||
| /s/ Robert Malone | Chairman | |
| Robert Malone | ||
| /s/ David Miller | Director | |
| David Miller | ||
| /s/ Michael W. Sutherlin | Director | |
| Michael W. Sutherlin | ||
| /s/ Darren Yeates | Director and Executive Vice President and | |
| Darren Yeates | Chief Operating Officer | |
II-9
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| AMERICAN LAND DEVELOPMENT, LLC | ||
| By: | /s/ Bryce G. West | |
| Bryce G. West | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Bryce G. West | President | |
| Bryce G. West | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-10
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| AMERICAN LAND HOLDINGS OF COLORADO, LLC | ||
| By: | /s/ Patrick K. Sollars | |
| Patrick K. Sollars | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Patrick K. Sollars | President | |
| Patrick K. Sollars | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-11
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| AMERICAN LAND HOLDINGS OF ILLINOIS, LLC | ||
| By: | /s/ James A. Tichenor | |
| James A. Tichenor | ||
| Vice President and Treasurer | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-12
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| AMERICAN LAND HOLDINGS OF INDIANA, LLC | ||
| By: | /s/ Drew W. Kimery | |
| Drew W. Kimery | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Drew W. Kimery | President | |
| Drew W. Kimery | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-13
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| AMERICAN LAND HOLDINGS OF KENTUCKY, LLC | ||
| By: | /s/ Bryce G. West | |
| Bryce G. West | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Bryce G. West | President | |
| Bryce G. West | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-14
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| BIG RIDGE, INC. | ||
| By: | /s/ Darral G. Heaton | |
| Darral G. Heaton | ||
| President and Director | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Darral G. Heaton | President and Director | |
| Darral G. Heaton | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-15
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| BIG SKY COAL COMPANY | ||
| By: | /s/ Bryce G. West | |
| Bryce G. West | ||
| President and Director | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Bryce G. West | President and Director | |
| Bryce G. West | ||
| /s/ Michael J. Jasutis | Treasurer | |
| Michael J. Jasutis | ||
II-16
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| BTU WESTERN RESOURCES, INC. | ||
| By: | /s/ Scott N. Durgin | |
| Scott N. Durgin | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Scott N. Durgin | President | |
| Scott N. Durgin | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
| /s/ William R. Hall | Director | |
| William R. Hall | ||
II-17
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| COALSALES II, LLC | ||
| By: | /s/ Michael Siebers | |
| Michael Siebers | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Michael Siebers | President | |
| Michael Siebers | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-18
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| CONSERVANCY RESOURCES, LLC | ||
| By: | /s/ Bryce G. West | |
| Bryce G. West | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Bryce G. West | President | |
| Bryce G. West | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-19
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| EL SEGUNDO COAL COMPANY, LLC | ||
| By: | /s/ William R. Hall | |
| William R. Hall | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ William R. Hall | President | |
| William R. Hall | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-20
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| HAYDEN GULCH TERMINAL, LLC | ||
| By: | /s/ Patrick K. Sollars | |
| Patrick K. Sollars | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Patrick K. Sollars | President | |
| Patrick K. Sollars | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-21
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| HILLSIDE RECREATIONAL LANDS, LLC | ||
| By: | /s/ Bryce G. West | |
| Bryce G. West | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Bryce G. West | President | |
| Bryce G. West | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-22
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| KAYENTA MOBILE HOME PARK, INC. | ||
| By: | /s/ Bryce G. West | |
| Bryce G. West | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Bryce G. West | President | |
| Bryce G. West | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
| /s/ Robert F. Bruer | Vice President and Director | |
| Robert F. Bruer | ||
II-23
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| KENTUCKY UNITED COAL, LLC | ||
| By: | /s/ Drew W. Kimery | |
| Drew W. Kimery | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Drew W. Kimery | President | |
| Drew W. Kimery | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-24
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| MOFFAT COUNTY MINING, LLC | ||
| By: | /s/ William R. Hall | |
| William R. Hall | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ William R. Hall | President | |
| William R. Hall | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-25
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| NEW MEXICO COAL RESOURCES, LLC | ||
| By: | /s/ William R. Hall | |
| William R. Hall | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ William R. Hall | President | |
| William R. Hall | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-26
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| NGS ACQUISITION CORP., LLC | ||
| By: | /s/ Patrick J. Forkin, III | |
| Patrick J. Forkin, III | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Patrick J. Forkin, III | President | |
| Patrick J. Forkin, III | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-27
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| PEABODY AMERICA, LLC | ||
| By: | /s/ Robert F. Bruer | |
| Robert F. Bruer | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Robert F. Bruer | President | |
| Robert F. Bruer | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-28
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| PEABODY ARCLAR MINING, LLC | ||
| By: | /s/ Eric A. Carter | |
| Eric A. Carter | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Eric A. Carter | President | |
| Eric A. Carter | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-29
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| PEABODY ASSET HOLDINGS, LLC | ||
| By: | /s/ Mark A. Spurbeck | |
| Mark A. Spurbeck | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Mark A. Spurbeck | President | |
| Mark A. Spurbeck | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-30
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| PEABODY BEAR RUN MINING, LLC | ||
| By: | /s/ Drew W. Kimery | |
| Drew W. Kimery | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Drew W. Kimery | President | |
| Drew W. Kimery | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-31
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| PEABODY BEAR RUN SERVICES, LLC | ||
| By: | /s/ Darral G. Heaton | |
| Darral G. Heaton | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Darral G. Heaton | President | |
| Darral G. Heaton | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-32
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| PEABODY CABALLO MINING, LLC | ||
| By: | /s/ Casey D. Felmlee | |
| Casey D. Felmlee | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Casey D. Felmlee | President | |
| Casey D. Felmlee | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-33
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| PEABODY CARDINAL GASIFICATION, LLC | ||
| By: | /s/ Robert F. Bruer | |
| Robert F. Bruer | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Robert F. Bruer | President | |
| Robert F. Bruer | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-34
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| PEABODY CHINA, LLC | ||
| By: | /s/ Alice Tharenos | |
| Alice Tharenos | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Alice Tharenos | President | |
| Alice Tharenos | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-35
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| PEABODY COALSALES, LLC | ||
| By: | /s/ Michael Siebers | |
| Michael Siebers | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Michael Siebers | President | |
| Michael Siebers | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-36
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| PEABODY COALTRADE, LLC | ||
| By: | /s/ James A. Tichenor | |
| James A. Tichenor | ||
| Vice President and Treasurer | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-37
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| PEABODY COLORADO OPERATIONS, LLC | ||
| By: | /s/ Patrick K. Sollars | |
| Patrick K. Sollars | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Patrick K. Sollars | President | |
| Patrick K. Sollars | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-38
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| PEABODY COLORADO SERVICES, LLC | ||
| By: | /s/ Patrick K. Sollars | |
| Patrick K. Sollars | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Patrick K. Sollars | President | |
| Patrick K. Sollars | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-39
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| PEABODY COULTERVILLE MINING, LLC | ||
| By: | /s/ James A. Tichenor | |
| James A. Tichenor | ||
| Vice President and Treasurer | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-40
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| PEABODY DEVELOPMENT COMPANY, LLC | ||
| By: | /s/ Robert F. Bruer | |
| Robert F. Bruer | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Robert F. Bruer | President | |
| Robert F. Bruer | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-41
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| PEABODY ELECTRICITY, LLC | ||
| By: | /s/ Robert F. Bruer | |
| Robert F. Bruer | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Robert F. Bruer | President | |
| Robert F. Bruer | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-42
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| PEABODY EMPLOYMENT SERVICES, LLC | ||
| By: | /s/ Darral G. Heaton | |
| Darral G. Heaton | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Darral G. Heaton | President | |
| Darral G. Heaton | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-43
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| PEABODY GATEWAY NORTH MINING, LLC | ||
| By: | /s/ James A. Tichenor | |
| James A. Tichenor | ||
| Vice President and Treasurer | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-44
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| PEABODY GATEWAY SERVICES, LLC | ||
| By: | /s/ James A. Tichenor | |
| James A. Tichenor | ||
| Vice President and Treasurer | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-45
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| PEABODY GLOBAL FUNDING, LLC | ||
| By: | /s/ Mark A. Spurbeck | |
| Mark A. Spurbeck | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Mark A. Spurbeck | President | |
| Mark A. Spurbeck | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-46
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| PEABODY GLOBAL HOLDINGS, LLC | ||
| By: | /s/ Mark A. Spurbeck | |
| Mark A. Spurbeck | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Mark A. Spurbeck | President | |
| Mark A. Spurbeck | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-47
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| PEABODY HOLDING COMPANY, LLC | ||
| By: | /s/ William R. Hall | |
| William R. Hall | ||
| President and Chief Executive Officer | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ William R. Hall | President and Chief Executive Officer | |
| William R. Hall | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-48
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| PEABODY IC FUNDING CORP. | ||
| By: | /s/ Mark A. Spurbeck | |
| Mark A. Spurbeck | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Mark A. Spurbeck | President | |
| Mark A. Spurbeck | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
| /s/ Robert F. Bruer | Vice President and Director | |
| Robert F. Bruer | ||
II-49
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| PEABODY ILLINOIS SERVICES, LLC | ||
| By: | /s/ Darral G. Heaton | |
| Darral G. Heaton | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Darral G. Heaton | President | |
| Darral G. Heaton | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-50
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| PEABODY INDIANA SERVICES, LLC | ||
| By: | /s/ Darral G. Heaton | |
| Darral G. Heaton | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Darral G. Heaton | President | |
| Darral G. Heaton | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-51
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| PEABODY INTERNATIONAL HOLDINGS, LLC By Peabody Investments Corp., its sole member | ||
| By: | /s/ Scott T. Jarboe | |
| Scott T. Jarboe | ||
| Secretary | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned sole member of Peabody International Holdings, LLC hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| PEABODY INVESTMENTS CORP. | ||
| By: | /s/ Scott T. Jarboe | |
| Scott T. Jarboe | ||
| Secretary | ||
II-52
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| PEABODY INTERNATIONAL INVESTMENTS, INC. | ||
| By: | /s/ Mark A. Spurbeck | |
| Mark A. Spurbeck | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Mark A. Spurbeck | President | |
| Mark A. Spurbeck | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
| /s/ Robert F. Bruer | Vice President and Director | |
| Robert F. Bruer | ||
II-53
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| PEABODY INTERNATIONAL SERVICES, INC. | ||
| By: | /s/ James A. Tichenor | |
| James A. Tichenor | ||
| Vice President and Treasurer | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
| /s/ Robert F. Bruer | Vice President and Director | |
| Robert F. Bruer | ||
II-54
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| PEABODY INVESTMENTS CORP. | ||
| By: | /s/ Glenn L. Kellow | |
| Glenn L. Kellow | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Glenn L. Kellow | President | |
| Glenn L. Kellow | ||
| /s/ Mark A. Spurbeck | Executive Vice President, | |
| Mark A. Spurbeck | Chief Financial Officer and Director | |
| /s/ Julie A. Nadolny | Director | |
| Julie A. Nadolny | ||
II-55
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| PEABODY MIDWEST MANAGEMENT SERVICES, LLC | ||
| By: | /s/ Darral G. Heaton | |
| Darral G. Heaton | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Darral G. Heaton | President | |
| Darral G. Heaton | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-56
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| PEABODY MIDWEST MINING, LLC | ||
| By: | /s/ Drew W. Kimery | |
| Drew W. Kimery | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Drew W. Kimery | President | |
| Drew W. Kimery | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-57
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| PEABODY MIDWEST OPERATIONS, LLC | ||
| By: | /s/ Drew W. Kimery | |
| Drew W. Kimery | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Drew W. Kimery | President | |
| Drew W. Kimery | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-58
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| PEABODY MIDWEST SERVICES, LLC | ||
| By: | /s/ Darral G. Heaton | |
| Darral G. Heaton | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Darral G. Heaton | President | |
| Darral G. Heaton | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-59
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| PEABODY MONGOLIA, LLC | ||
| By: | /s/ Patrick J. Forkin, III | |
| Patrick J. Forkin, III | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Patrick J. Forkin, III | President | |
| Patrick J. Forkin, III | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-60
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| PEABODY NATURAL GAS, LLC | ||
| By: | /s/ Robert F. Bruer | |
| Robert F. Bruer | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Robert F. Bruer | President | |
| Robert F. Bruer | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-61
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| PEABODY NATURAL RESOURCES COMPANY | ||
| By: | /s/ Robert F. Bruer | |
| Robert F. Bruer | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Robert F. Bruer | President | |
| Robert F. Bruer | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-62
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| PEABODY NEW MEXICO SERVICES, LLC | ||
| By: | /s/ Darral G. Heaton | |
| Darral G. Heaton | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Darral G. Heaton | President | |
| Darral G. Heaton | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-63
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| PEABODY OPERATIONS HOLDING, LLC | ||
| By: | /s/ William R. Hall | |
| William R. Hall | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ William R. Hall | President | |
| William R. Hall | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-64
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| PEABODY POWDER RIVER MINING, LLC | ||
| By: | /s/ Scott N. Durgin | |
| Scott N. Durgin | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Scott N. Durgin | President | |
| Scott N. Durgin | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-65
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| PEABODY POWDER RIVER OPERATIONS, LLC | ||
| By: | /s/ William R. Hall | |
| William R. Hall | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ William R. Hall | President | |
| William R. Hall | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-66
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| PEABODY POWDER RIVER SERVICES, LLC | ||
| By: | /s/ Scott N. Durgin | |
| Scott N. Durgin | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Scott N. Durgin | President | |
| Scott N. Durgin | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-67
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| PEABODY ROCKY MOUNTAIN MANAGEMENT SERVICES, LLC | ||
| By: | /s/ Patrick K. Sollars | |
| Patrick K. Sollars | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Patrick K. Sollars | President | |
| Patrick K. Sollars | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-68
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| PEABODY ROCKY MOUNTAIN SERVICES, LLC | ||
| By: | /s/ Patrick K. Sollars | |
| Patrick K. Sollars | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Patrick K. Sollars | President | |
| Patrick K. Sollars | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-69
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| PEABODY SAGE CREEK MINING, LLC | ||
| By: | /s/ Bryce G. West | |
| Bryce G. West | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Bryce G. West | President | |
| Bryce G. West | ||
| /s/ Eric J. Baltz | Treasurer | |
| Eric J. Baltz | ||
II-70
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| PEABODY SCHOOL CREEK MINING, LLC | ||
| By: | /s/ Scott N. Durgin | |
| Scott N. Durgin | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Scott N. Durgin | President | |
| Scott N. Durgin | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-71
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| PEABODY SERVICES HOLDINGS, LLC | ||
| By: | /s/ Darral G. Heaton | |
| Darral G. Heaton | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Darral G. Heaton | President | |
| Darral G. Heaton | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-72
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| PEABODY SOUTHEAST MINING, LLC | ||
| By: | /s/ Eric T. Martin | |
| Eric T. Martin | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Eric T. Martin | President | |
| Eric T. Martin | ||
II-73
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| PEABODY TWENTYMILE MINING, LLC | ||
| By: | /s/ Patrick K. Sollars | |
| Patrick K. Sollars | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Patrick K. Sollars | President | |
| Patrick K. Sollars | ||
II-74
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| PEABODY VENEZUELA COAL CORP. | ||
| By: | /s/ William R. Hall | |
| William R. Hall | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ William R. Hall | President | |
| William R. Hall | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
| /s/ Robert F. Bruer | Vice President and Director | |
| Robert F. Bruer | ||
II-75
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| PEABODY VENTURE FUND, LLC | ||
| By: | /s/ Patrick J. Forkin, III | |
| Patrick J. Forkin, III | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Patrick J. Forkin, III | President | |
| Patrick J. Forkin, III | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-76
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| PEABODY-WATERSIDE DEVELOPMENT, L.L.C. | ||
| By: | /s/ Bryce G. West | |
| Bryce G. West | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Bryce G. West | President | |
| Bryce G. West | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-77
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| PEABODY WESTERN COAL COMPANY | ||
| By: | /s/ Randolph S. Lehn | |
| Randolph S. Lehn | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Randolph S. Lehn | President | |
| Randolph S. Lehn | ||
| /s/ Bryce G. West | Director | |
| Bryce G. West | ||
II-78
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| PEABODY WILD BOAR MINING, LLC | ||
| By: | /s/ William R. Hall | |
| William R. Hall | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ William R. Hall | President | |
| William R. Hall | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-79
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| PEABODY WILD BOAR SERVICES, LLC | ||
| By: | /s/ Kenneth B. Rigsby | |
| Kenneth B. Rigsby | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Kenneth B. Rigsby | President | |
| Kenneth B. Rigsby | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-80
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| PEABODY WILLIAMS FORK MINING, LLC | ||
| By: | /s/ William R. Hall | |
| William R. Hall | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ William R. Hall | President | |
| William R. Hall | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-81
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| PEABODY WYOMING SERVICES, LLC | ||
| By: | /s/ William R. Hall | |
| William R. Hall | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ William R. Hall | President | |
| William R. Hall | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-82
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| PEC EQUIPMENT COMPANY, LLC | ||
| By: | /s/ Paul M. Wagner | |
| Paul M. Wagner | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Paul M. Wagner | President | |
| Paul M. Wagner | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-83
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| SAGE CREEK HOLDINGS, LLC | ||
| By: | /s/ Patrick K. Sollars | |
| Patrick K. Sollars | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Patrick K. Sollars | President | |
| Patrick K. Sollars | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-84
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| SAGE CREEK LAND & RESERVES, LLC | ||
| By: | /s/ Patrick K. Sollars | |
| Patrick K. Sollars | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Patrick K. Sollars | President | |
| Patrick K. Sollars | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-85
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| SENECA COAL COMPANY, LLC | ||
| By: | /s/ Thomas Dietrich | |
| Thomas Dietrich | ||
| Secretary | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Thomas Dietrich | Secretary | |
| Thomas Dietrich | ||
| /s/ Kurt A. Jones | Treasurer | |
| Kurt A. Jones | ||
II-86
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| SENECA PROPERTY, LLC | ||
| By: | /s/ Robert F. Bruer | |
| Robert F. Bruer | ||
| Vice President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Robert F. Bruer | Vice President | |
| Robert F. Bruer | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-87
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| SHOSHONE COAL CORPORATION | ||
| By: | /s/ William R. Hall | |
| William R. Hall | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ William R. Hall | President | |
| William R. Hall | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
| /s/ Robert F. Bruer | Vice President and Director | |
| Robert F. Bruer | ||
II-88
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| TWENTYMILE COAL, LLC | ||
| By: | /s/ Patrick K. Sollars | |
| Patrick K. Sollars | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Patrick K. Sollars | President | |
| Patrick K. Sollars | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-89
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Louis, State of Missouri on March 26, 2021.
| UNITED MINERALS COMPANY, LLC | ||
| By: | /s/ Drew W. Kimery | |
| Drew W. Kimery | ||
| President | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and/or officers whose signature appears below hereby constitutes and appoints Glenn L. Kellow, Mark A. Spurbeck and Scott T. Jarboe, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and does hereby grant unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on the 26th day of March, 2021 by the following persons in the capacities indicated:
| Signature |
Title | |
| /s/ Drew W. Kimery | President | |
| Drew W. Kimery | ||
| /s/ James A. Tichenor | Vice President and Treasurer | |
| James A. Tichenor | ||
II-90
Exhibit 4.3
FORM OF INDENTURE
Dated as of [ ]
Between
PEABODY ENERGY CORPORATION,
as Issuer
and
WILMINGTON TRUST, NATIONAL ASSOCIATION,
as Trustee
CERTAIN SECTIONS OF THIS INDENTURE
RELATING TO SECTIONS 310 THROUGH 318 INCLUSIVE,
OF THE TRUST INDENTURE ACT OF 1939
| Trust Indenture Act Section | Indenture Section | |
| Section 3.10(a)(1) |
609 | |
| (a)(2) |
609 | |
| (a)(3) |
Not Applicable | |
| (a)(4) |
Not Applicable | |
| (b) |
608 | |
| 610 | ||
| Section 3.11(a) |
613 | |
| (b) |
613 | |
| Section 3.12(a) |
701 | |
| 702 | ||
| (b) |
702 | |
| (c) |
702 | |
| Section 3.13(a) |
703 | |
| (b) |
703 | |
| (c) |
703 | |
| (d) |
703 | |
| Section 3.14(a) |
704 | |
| (a)(4) |
1004 | |
| (b) |
Not Applicable | |
| (c)(1) |
102 | |
| (c)(2) |
102 | |
| (c)(3) |
Not Applicable | |
| (d) |
Not Applicable | |
| (e) |
102 | |
| Section 3.15(a) |
601 | |
| (b) |
602 | |
| (c) |
601 | |
| (d) |
601 | |
| (e) |
513 | |
| Section 3.16(a) |
101 | |
| (a)(1)(A) |
502 | |
| 511 | ||
| (a)(1)(B) |
512 | |
| (a)(2) |
Not Applicable | |
| (b) |
508 | |
| (c) |
104 | |
| Section 3.17(a)(1) |
504 | |
| (a)(2) |
504 | |
| (b) |
1003 | |
| Section 3.18(a) |
107 |
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a part of this Indenture.
i
TABLE OF CONTENTS
| Page | ||||||
| PARTIES |
1 | |||||
| RECITALS |
1 | |||||
| ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION |
1 | |||||
| Section 101. |
Definitions | 1 | ||||
| Section 102. |
Compliance Certificates and Opinions | 6 | ||||
| Section 103. |
Form of Documents Delivered to Trustee | 6 | ||||
| Section 104. |
Acts of Holders; Record Dates | 7 | ||||
| Section 105. |
Notices, Etc., to Trustee and Company | 8 | ||||
| Section 106. |
Notice to Holders; Waiver | 8 | ||||
| Section 107. |
Conflict with Trust Indenture Act | 9 | ||||
| Section 108. |
Effect of Headings and Table of Contents | 9 | ||||
| Section 109. |
Successors and Assigns | 9 | ||||
| Section 110. |
Separability Clause | 9 | ||||
| Section 111. |
Benefits of Indenture | 9 | ||||
| Section 112. |
Governing Law | 9 | ||||
| Section 113. |
Legal Holidays | 9 | ||||
| Section 114. |
No Recourse Against Others | 10 | ||||
| Section 115. |
WAIVER OF JURY TRIAL; JURISDICTION | 10 | ||||
| Section 116. |
USA PATRIOT Act | 10 | ||||
| ARTICLE II SECURITY FORMS |
10 | |||||
| Section 201. |
Forms Generally | 10 | ||||
| Section 202. |
Form of Legend for Global Securities | 11 | ||||
| Section 203. |
Form of Trustee’s Certificate of Authentication | 11 | ||||
| ARTICLE III THE SECURITIES |
11 | |||||
| Section 301. |
Amount Unlimited; Issuable in Series | 11 | ||||
| Section 302. |
Denominations | 14 | ||||
ii
| Section 303. |
Execution, Authentication, Delivery and Dating | 14 | ||||
| Section 304. |
Temporary Securities | 15 | ||||
| Section 305. |
Registration, Registration of Transfer and Exchange | 16 | ||||
| Section 306. |
Mutilated, Destroyed, Lost and Stolen Securities | 17 | ||||
| Section 307. |
Payment of Interest; Interest Rights Preserved | 18 | ||||
| Section 308. |
Persons Deemed Owners | 19 | ||||
| Section 309. |
Cancellation | 19 | ||||
| Section 310. |
Computation of Interest | 19 | ||||
| Section 311. |
CUSIP Numbers | 19 | ||||
| Section 312. |
Original Issue Discount | 20 | ||||
| ARTICLE IV SATISFACTION AND DISCHARGE |
20 | |||||
| Section 401. |
Satisfaction and Discharge of Indenture | 20 | ||||
| Section 402. |
Application of Trust Money | 21 | ||||
| ARTICLE V REMEDIES |
21 | |||||
| Section 501. |
Events of Default | 21 | ||||
| Section 502. |
Acceleration of Maturity; Rescission and Annulment | 22 | ||||
| Section 503. |
Collection of Indebtedness and Suits for Enforcement by Trustee | 23 | ||||
| Section 504. |
Trustee May File Proofs of Claim | 23 | ||||
| Section 505. |
Trustee May Enforce Claims Without Possession of Securities | 24 | ||||
| Section 506. |
Application of Money Collected | 24 | ||||
| Section 507. |
Limitation on Suits | 24 | ||||
| Section 508. |
Unconditional Right of Holders to Receive Principal, Premium and Interest and to Convert Securities | 25 | ||||
| Section 509. |
Rights and Remedies Cumulative | 25 | ||||
| Section 510. |
Delay or Omission Not Waiver | 25 | ||||
| Section 511. |
Control by Holders | 25 | ||||
| Section 512. |
Waiver of Past Defaults | 26 | ||||
iii
| Section 513. |
Undertaking for Costs | 26 | ||||
| Section 514. |
Waiver of Usury, Stay or Extension Laws | 26 | ||||
| Section 515. |
Restoration of Rights and Remedies | 26 | ||||
| ARTICLE VI THE TRUSTEE |
27 | |||||
| Section 601. |
Certain Duties and Responsibilities of Trustee | 27 | ||||
| Section 602. |
Notice of Defaults | 27 | ||||
| Section 603. |
Certain Rights of Trustee | 28 | ||||
| Section 604. |
Not Responsible for Recitals or Issuance of Securities | 29 | ||||
| Section 605. |
May Hold Securities | 29 | ||||
| Section 606. |
Money Held in Trust | 29 | ||||
| Section 607. |
Compensation and Reimbursement | 29 | ||||
| Section 608. |
Conflicting Interests | 30 | ||||
| Section 609. |
Corporate Trustee Required; Eligibility | 30 | ||||
| Section 610. |
Resignation and Removal; Appointment of Successor | 31 | ||||
| Section 611. |
Acceptance of Appointment by Successor | 32 | ||||
| Section 612. |
Merger, Conversion, Consolidation or Succession to Business | 32 | ||||
| Section 613. |
Preferential Collection of Claims Against Company | 33 | ||||
| ARTICLE VII HOLDERS’ LISTS AND REPORTS BY THE TRUSTEE AND THE COMPANY |
33 | |||||
| Section 701. |
Company to Furnish Trustee Names and Addresses of Holders | 33 | ||||
| Section 702. |
Preservation of Information; Communications to Holders | 33 | ||||
| Section 703. |
Reports by Trustee | 33 | ||||
| Section 704. |
Reports by the Company | 33 | ||||
| ARTICLE VIII CONSOLIDATION, MERGER AND SALE OF ASSETS |
34 | |||||
| Section 801. |
Company May Merge or Transfer Assets on Certain Terms | 34 | ||||
| Section 802. |
Successor Person Substituted | 34 | ||||
iv
| ARTICLE IX SUPPLEMENTAL INDENTURES |
34 | |||||
| Section 901. |
Supplemental Indentures Without Consent of Holders | 34 | ||||
| Section 902. |
Supplemental Indentures With Consent of Holders | 35 | ||||
| Section 903. |
Execution of Supplemental Indentures | 37 | ||||
| Section 904. |
Effect of Supplemental Indentures | 37 | ||||
| Section 905. |
Conformity with Trust Indenture Act | 37 | ||||
| Section 906. |
Reference in Securities to Supplemental Indentures | 37 | ||||
| ARTICLE X COVENANTS |
37 | |||||
| Section 1001. |
Payment of Principal, Premium, if any, and Interest | 37 | ||||
| Section 1002. |
Maintenance of Office or Agency | 37 | ||||
| Section 1003. |
Money for Securities Payments to Be Held in Trust | 38 | ||||
| Section 1004. |
Statement by Officers as to Default | 39 | ||||
| Section 1005. |
Waiver of Certain Covenants | 39 | ||||
| ARTICLE XI REDEMPTION OF SECURITIES |
39 | |||||
| Section 1101. |
Applicability of Article | 39 | ||||
| Section 1102. |
Election to Redeem; Notice to Trustee | 39 | ||||
| Section 1103. |
Selection by Trustee of Securities to Be Redeemed | 39 | ||||
| Section 1104. |
Notice of Redemption | 40 | ||||
| Section 1105. |
Deposit of Redemption Price | 41 | ||||
| Section 1106. |
Securities Payable on Redemption Date | 41 | ||||
| Section 1107. |
Securities Redeemed in Part | 42 | ||||
| ARTICLE XII [RESERVED] |
42 | |||||
| ARTICLE XIII DEFEASANCE AND COVENANT DEFEASANCE |
42 | |||||
| Section 1301. |
Company’s Option to Effect Defeasance or Covenant Defeasance | 42 | ||||
| Section 1302. |
Defeasance and Discharge | 42 | ||||
| Section 1303. |
Covenant Defeasance | 42 | ||||
| Section 1304. |
Conditions to Defeasance or Covenant Defeasance | 43 | ||||
| Section 1305. |
Deposited Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions | 44 | ||||
| Section 1306. |
Reinstatement | 44 | ||||
v
INDENTURE, dated as of [ ], between Peabody Energy Corporation, a Delaware corporation (herein called the “Company”) and Wilmington Trust, National Association, as trustee (herein called the “Trustee”).
PARTIES
RECITALS
The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its debt securities (herein called the “Securities”), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually agreed, for the equal and proportionate benefit of all Holders of the Securities or of any series thereof, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
| (1) | the terms defined in this Article I have the meanings assigned to them in this Article I and include the plural as well as the singular; |
| (2) | all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein; |
| (3) | all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with GAAP; |
| (4) | unless the context otherwise requires, any reference to an “Article” or a “Section” refers to an Article or a Section, as the case may be, of this Indenture; |
| (5) | the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision; |
| (6) | “including” means including without limitation; |
| (7) | when used with respect to any Security, the words “convert,” “converted” and “conversion” are intended to refer to the right of the Holder or the Company to convert or exchange such Security into or for securities or other property in accordance with such terms, if any, as may hereafter be specified for such Security as contemplated by Section 301, and these words are not intended to refer to any right of the Holder or the Company to exchange such Security for other Securities of the same series and like tenor pursuant to Section 304, 305, 306, 906 or 1107 or another similar provisions of this Indenture, unless the context otherwise requires; and references herein to the terms of any Security that may be converted mean such terms as may be specified for such Security as contemplated in Section 301; and |
1
| (8) | unless otherwise provided, references to agreements and other instruments shall be deemed to include all amendments and other modifications to such agreements and instruments, but only to the extent such amendments and other modifications are not prohibited by the terms of this Indenture. |
“Act,” when used with respect to any Holder, has the meaning specified in Section 104.
“Affiliate” means, with respect to any specified Person, any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Applicable Procedures” means, with respect to a Depositary, as to any matter at any time, the policies and procedures of such Depositary, if any, that are applicable to such matter at such time.
“Bankruptcy Law” has the meaning specified in Section 501.
“Board of Directors” means the board of directors of the Company or any duly authorized committee of that board or any director or directors and/or officer or officers of the Company to whom that board or committee shall have duly delegated its authority.
“Board Resolution” means a copy of one or more resolutions certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification and delivered to the Trustee.
“Business Day” means, when used with respect to any Place of Payment, unless otherwise specified as contemplated by Section 301, any day, other than a Saturday or Sunday, which is not a day on which banking institutions are authorized or obligated by law or executive order to close in that Place of Payment.
“Commission” means the U.S. Securities and Exchange Commission, from time to time constituted, created under the Exchange Act, or, if at any time after the execution of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
“Company” means the Person named as the “Company” in the first paragraph of this Indenture until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.
“Company Request” or “Company Order” means a written request or order signed in the name of the Company by an Officer of the Company (or any Person designated in writing as authorized to execute and deliver Company Requests and Company Orders), and delivered to the Trustee.
“Corporate Trust Office” means the principal office of the Trustee at which, at any particular time, its corporate trust business related to this Indenture shall be conducted (which office is located as of the date of this Indenture at 50 South Sixth Street, Suite 1290, Minneapolis, Minnesota 55402, Attention: Peabody Energy Corporation Administrator, or at any other time at such other address as the Trustee may designate from time to time by notice to the Company and the Holders).
“Covenant Defeasance” has the meaning specified in Section 1303.
“Custodian” has the meaning specified in Section 501.
2
“Default” means any event which is, or after notice or passage of time or both would be, an Event of Default.
“Defaulted Interest” has the meaning specified in Section 307.
“Defeasance” has the meaning specified in Section 1302.
“Depositary” means, with respect to Securities of any series issuable in whole or in part in the form of one or more Global Securities, a clearing agency registered under the Exchange Act that is designated to act as Depositary for such Securities as contemplated by Section 301.
“Event of Default” has the meaning specified in Section 501.
“Exchange Act” means the U.S. Securities Exchange Act of 1934 and any statute successor thereto, in each case as amended from time to time.
“Expiration Date” has the meaning specified in Section 104.
“GAAP” means generally accepted accounting principles in the United States (including, if applicable, International Financial Reporting Standards) as in effect from time to time.
“Global Security” means a Security that evidences all or part of the Securities of any series and bears the legend set forth in Section 202 (or such legend as may be specified as contemplated by Section 301 for such Securities).
“Holder” means a Person in whose name a Security is registered in the Security Register.
“Indenture” means this Indenture as originally executed and as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this Indenture and any such supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this Indenture and any such supplemental indenture, respectively. The term “Indenture” shall also include the terms of particular series of Securities established as contemplated by Section 301.
“interest” means, when used with respect to an Original Issue Discount Security which by its terms bears interest only after Maturity, interest payable after Maturity.
“Interest Payment Date” means, when used with respect to any Security, the Stated Maturity of an installment of interest on such Security.
“Internal Revenue Code” means the U.S. Internal Revenue Code of 1986, as amended from time to time.
“Maturity” means, when used with respect to any Security, the date on which the principal of such Security or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
“Notice of Default” means a written notice of the kind specified in Section 501.
“Officer” means the Chairman of the Board of Directors, the Chief Executive Officer, the Chief Financial Officer, the Chief Operating Officer, the President, any Executive Vice President, Senior Vice President, Vice President or Assistant Vice President, the Treasurer, any Assistant Treasurer or any other officer of such Person designated by any such individuals.
“Officer’s Certificate” means a certificate signed by an Officer of the Company.
3
“Opinion of Counsel” means a written opinion of counsel (who may be counsel for the Company) and who shall be acceptable to the Trustee. The counsel may be an employee of the Company. Opinions of Counsel required to be delivered under this Indenture may have qualifications customary for opinions of the type required and counsel delivering such Opinions of Counsel may rely as to factual matters on certificates of the Company or governmental or other officials customary for opinions of the type required.
“Original Issue Discount Security” means any Security which provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502.
“Outstanding” means, when used with respect to Securities, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:
| (1) | Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation; |
| (2) | Securities for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities; provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made; |
| (3) | Securities as to which Defeasance has been effected pursuant to Section 1302; |
| (4) | Securities which have been paid pursuant to Section 306 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a protected purchaser in whose hands such Securities are valid obligations of the Company; and |
| (5) | Securities as to which any property deliverable upon conversion thereof has been delivered (or such delivery has been made available), or as to which any other particular conditions have been satisfied, in each case as may be provided for such Securities as contemplated in Section 301; |
provided, however, that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given, made or taken any request, demand, authorization, direction, notice, consent, waiver or other action hereunder as of any date, (A) the principal amount of an Original Issue Discount Security which shall be deemed to be Outstanding shall be the amount of the principal thereof which would be due and payable as of such date upon acceleration of the Maturity thereof to such date pursuant to Section 502, (B) if, as of such date, the principal amount payable at the Stated Maturity of a Security is not determinable, the principal amount of such Security which shall be deemed to be Outstanding shall be the amount as specified or determined as contemplated by Section 301, (C) the principal amount of a Security denominated in one or more foreign currencies, composite currencies or currency units which shall be deemed to be Outstanding shall be the U.S. dollar equivalent, determined as of such date in the manner provided as contemplated by Section 301, of the principal amount of such Security (or, in the case of a Security described in clause (A) or (B) above, of the amount determined as provided in such clause), and (D) Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent, waiver or other action, only Securities which a Responsible Officer actually knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or such other obligor.
4
“Paying Agent” means any Person authorized by the Company to pay the principal of or premium, if any, or interest on any Securities on behalf of the Company.
“Person” means any individual, corporation, limited liability company, partnership (including limited partnership), joint venture, association, joint-stock company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity.
“Place of Payment” means, when used with respect to the Securities of any series, the place or places where the principal of and premium, if any, and interest on the Securities of such series are payable as specified as contemplated by Section 301.
“Predecessor Security” means, with respect to any particular Security, every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 306 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.
“Redemption Date” means, when used with respect to any Security to be redeemed, the date fixed for such redemption by or pursuant to this Indenture.
“Redemption Price” means, when used with respect to any Security to be redeemed, the price at which it is to be redeemed pursuant to this Indenture.
“Regular Record Date” means, for the interest payable on any Interest Payment Date on the Securities of any series, the date specified for that purpose as contemplated by Section 301.
“Repayment Date” means, when used with respect to a Security to be repaid at the option of a Holder, the date fixed for such repayment by or pursuant to this Indenture.
“Responsible Officer” when used with respect to the Trustee, means any officer within the Corporate Trust Office of the Trustee, including any vice president, assistant vice president, assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee who customarily performs functions similar to those performed by such persons and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his or her knowledge of and familiarity with the particular subject, in each case, who shall have direct responsibility for the administration of this Indenture.
“Securities” has the meaning specified in the first recital of this Indenture and more particularly means any Securities authenticated and delivered under this Indenture.
“Securities Act” means the U.S. Securities Act of 1933 and any statute successor thereto, in each case as amended from time to time.
“Security Register” and “Security Registrar” have the respective meanings specified in Section 305.
“Special Record Date” means, for the payment of any Defaulted Interest, a date fixed by the Company pursuant to Section 307.
“Stated Maturity” means, when used with respect to any Security or any installment of principal thereof or interest thereon, the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.
“Subsidiary” means any corporation, limited liability company, partnership (including limited partnership), joint venture, association or other business entity of which more than 50% of the outstanding voting stock (or equivalent equity interest) is owned, directly or indirectly, by the Company or by one or more other Subsidiaries (or a combination thereof). For purposes of this definition, “voting stock” means with respect to any specified “person” (as that term is used in Section 13(d) of the Exchange Act), the capital stock of such person that is at the time entitled to vote generally in the election of the board of directors of such person.
5
“Trust Indenture Act” means the U.S. Trust Indenture Act of 1939 as in force at the date as of which this Indenture was executed; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.
“Trustee” means the Person named as the “Trustee” in the first paragraph of this Indenture until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder, and if at any time there is more than one such Person, “Trustee” as used with respect to the Securities of any series shall mean the Trustee with respect to Securities of such series.
“U.S. Government Obligation” has the meaning specified in Section 1304(1).
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee an Officer’s Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of an Officer’s Certificate and/or an Opinion of Counsel is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (except for certificates provided for in Section 1004) shall include:
| (1) | a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto; |
| (2) | a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; |
| (3) | a statement that, in the opinion of each such individual, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and |
| (4) | a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with. |
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an Officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such Officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which such Officer’s certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an Officer or
6
Officers of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
Section 104. Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and, subject to Section 601, conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section 104.
The fact and date of the execution by any Person of any such instrument or writing may be proved in any manner which the Trustee reasonably deems sufficient. Where such execution is by a Person acting in a capacity other than such Person’s individual capacity, such certificate or affidavit shall also constitute sufficient proof of such Person’s authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Security.
The Company may set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to give, make or take any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders of Securities of such series; provided that the Company may not set a record date for, and the provisions of this paragraph shall not apply with respect to, the giving or making of any notice, declaration, request or direction referred to in the next paragraph. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of the relevant series on such record date, and no other Holders, shall be entitled to take the relevant action, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Company from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities of the relevant series on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Company, at its own expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Trustee in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 106.
The Trustee may set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to join in the giving or making of (i) any Notice of Default, (ii) any declaration of acceleration referred to in Section 502, (iii) any request to institute proceedings referred to in Section 507(2) or (iv) any direction referred to in Section 511, in each case with respect to Securities of such series. If any record date is
7
set pursuant to this paragraph, the Holders of Outstanding Securities of such series on such record date, and no other Holders, shall be entitled to join in such notice, declaration, request or direction, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Trustee from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities of the relevant series on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Trustee, at the Company’s expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Company in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 106.
With respect to any record date set pursuant to this Section 104, the party hereto which sets such record dates may designate any day as the “Expiration Date” and from time to time may change the Expiration Date to any earlier or later day; provided that no such change shall be effective unless notice of the proposed new Expiration Date is given to the other party hereto in writing, and to each Holder of Securities of the relevant series in the manner set forth in Section 106, on or prior to the existing Expiration Date. If an Expiration Date is not designated with respect to any record date set pursuant to this Section 104, the party hereto which set such record date shall be deemed to have initially designated the 180th day after such record date as the Expiration Date with respect thereto, subject to its right to change the Expiration Date as provided in this paragraph.
Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder with regard to any particular Security may do so with regard to all or any part of the principal amount of such Security or by one or more duly appointed agents each of which may do so pursuant to such appointment with regard to all or any part of such principal amount.
In addition to the foregoing, the Trustee agrees to accept and act upon notice, instructions or directions pursuant to this Indenture sent by unsecured e-mail, facsimile transmission or other similar unsecured electronic methods. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction.
Section 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,
| (1) | the Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing (which may be by facsimile) to or with the Trustee at its Corporate Trust Office at the location specified in Section 101; or |
| (2) | the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to the Company addressed to the attention of the Secretary of the Company at the address of the Company’s principal office specified in writing to the Trustee by the Company and, until further notice, at, in the case of the Company, 701 Market Street, St. Louis, MO 63101, facsimile: (314) 342-7740, Attention: James A. Tichenor with a copy to facsimile: (314) 342-7720, Attention: Chief Legal Officer. |
Section 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at such Holder’s address as it appears in the Security Register, not later than the latest date, if any, and not earlier than the earliest date, if any, prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any
8
particular Holder shall affect the sufficiency of such notice with respect to other Holders. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
Where this Indenture provides for notice of any event to a Holder of a Global Security, such notice shall be sufficiently given if given to the Depositary for such Security (or its designee), pursuant to the Applicable Procedures of the Depositary, not later than the latest date, if any, and not earlier than the earliest date, if any, prescribed for the giving of such notice.
Section 107. Conflict with Trust Indenture Act.
If any provision of this Indenture limits, qualifies or conflicts with a provision of the Trust Indenture Act which is required under such Act to be a part of and govern this Indenture, the latter provision shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act which may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be.
Section 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
Section 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not. All agreements of the Trustee in this Indenture shall bind its successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 112. Governing Law.
This Indenture and the Securities shall be governed by, and construed in accordance with, the law of the State of New York.
Section 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Security, or any date on which a Holder has the right to convert such Holder’s Security, shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of the Securities (other than a provision of
9
any Security which specifically states that such provision shall apply in lieu of this Section 113)) payment of principal and premium, if any, or interest, or the Redemption Price or conversion of such Security, need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity, or on such conversion date. In the case, however, of Securities of a series bearing interest at a floating rate based on the London interbank offered rate (LIBOR), if any Interest Payment Date (other than the Redemption Date or Stated Maturity) would otherwise be a date that is not a Business Day, then the Interest Payment Date shall be postponed to the following date which is a Business Day, unless that Business Day falls in the next succeeding calendar month, in which case the Interest Payment Date will be the immediately preceding Business Day. No interest shall accrue on such payment for the period from and after any such Interest Payment Date, Redemption Date, Stated Maturity or conversion date, as the case may be, to the date of such payment.
Section 114. No Recourse Against Others.
A director, officer, employee or stockholder as such of the Company shall not have any liability for any obligations of the Company under the Securities or this Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting a Security, each Holder shall waive and release all such liability. The waiver and release shall be part of the consideration for the issue of the Securities.
Section 115. WAIVER OF JURY TRIAL; JURISDICTION.
EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING AS BETWEEN THE COMPANY AND THE TRUSTEE ONLY ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE SECURITIES; AND (I) EACH OF THE COMPANY AND TRUSTEE HEREBY IRREVOCABLY SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF ANY FEDERAL OR STATE COURT SITTING IN THE BOROUGH OF MANHATTAN, THE CITY OF NEW YORK, (II) WAIVE ANY OBJECTION TO LAYING OF VENUE IN SUCH ACTION OR PROVEEDING IN SUCH COURTS, AND (III) WAIVE ANY OBJECTION THAT SUCH COURTS ARE IN THE INCONVENIENT FORUM OR DO NOT HAVE JURISDICTION OVER ANY PARTY.
Section 116. USA PATRIOT Act.
The parties hereto acknowledge that in order to help the United States government fight the funding of terrorism and money laundering activities, pursuant to Federal regulations that became effective on October 1, 2003 (Section 326 of the USA PATRIOT Act) all financial institutions are required to obtain, verify, record and update information that identifies each person establishing a relationship or opening an account. The parties to this Indenture agree that they will provide to the Trustee such information as it may request, from time to time, in order for the Trustee to satisfy the requirements of the USA PATRIOT Act, including but not limited to the name, address, tax identification number and other information that will allow it to identify the individual or entity who is establishing the relationship or opening the account and may also ask for formation documents such as articles of incorporation or other identifying documents to be provided.
ARTICLE II
SECURITY FORMS
Section 201. Forms Generally.
The Securities of each series shall be in substantially such form or forms as shall be established by or pursuant to a Board Resolution or, subject to Section 303, set forth in, or determined in the manner provided in, an Officer’s Certificate pursuant to authority granted by one or more Board Resolutions, or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with applicable tax laws or the rules of any securities exchange or Depositary therefor or as may, consistently herewith, be determined by the Officer
10
executing such Securities, as evidenced by their execution thereof. If the form of Securities of any series is established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 303 for the authentication and delivery of such Securities. If all of the Securities of any series established by action taken pursuant to a Board Resolution are not to be issued at one time, it shall not be necessary to deliver a record of such action at the time of issuance of each Security of such series, but an appropriate record of such action shall be delivered at or before the time of issuance of the first Security of such series.
The definitive Securities shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the officers executing such Securities, as evidenced by their execution of such Securities.
Section 202. Form of Legend for Global Securities.
Unless otherwise specified as contemplated by Section 301 for the Securities evidenced thereby, every Global Security authenticated and delivered hereunder shall bear a legend in substantially the following form:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (“DTC”) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE REFERRED TO ON THE REVERSE HEREOF. TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
Section 203. Form of Trustee’s Certificate of Authentication.
The Trustee’s certificates of authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
Dated:
| Wilmington Trust, National Association, as Trustee | ||
| By: | ||
| Authorized Signatory | ||
11
ARTICLE III
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be established in or pursuant to (a) a Board Resolution or pursuant to authority granted by one or more Board Resolutions and, subject to Section 303, set forth, or determined in the manner provided, in an Officer’s Certificate, or (b) one or more indentures supplemental hereto, prior to the issuance of Securities of any series:
| (1) | the title of the Securities of the series (which shall distinguish the Securities of the series from Securities of any other series); |
| (2) | the limit, if any, on the aggregate principal amount of the Securities of the series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 304, 305, 306, 906 or 1107 and except for any Securities which, pursuant to Section 303, are deemed never to have been authenticated and delivered hereunder); |
| (3) | the Person to whom any interest on a Security of the series shall be payable, if other than the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest; |
| (4) | whether the Securities rank as senior Securities, subordinated Securities or any combination thereof and the terms of any such subordination; |
| (5) | the date or dates on which the principal of any Securities of the series is payable or the method used to determine or extend those dates; |
| (6) | the rate or rates at which any Securities of the series shall bear interest, if any, the date or dates from which any such interest shall accrue, the Interest Payment Dates on which any such interest shall be payable and the Regular Record Date for any such interest payable on any Interest Payment Date; |
| (7) | the place or places where the principal of and premium, if any, and interest on any Securities of the series shall be payable and the manner in which any payment may be made; |
| (8) | the period or periods within which, the price or prices at which and the terms and conditions upon which any Securities of the series may be redeemed, in whole or in part, at the option of the Company and, if other than by a Board Resolution, the manner in which any election by the Company to redeem the Securities shall be evidenced; |
| (9) | the obligation or the right, if any, of the Company to redeem or purchase any Securities of the series pursuant to any sinking fund or at the option of the Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which any Securities of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation; |
| (10) | if other than minimum denominations of $2,000 and any integral multiples of $1,000 in excess thereof, the denominations in which any Securities of the series shall be issuable; |
| (11) | if the amount of principal of or premium, if any, or interest on any Securities of the series may be determined with reference to a financial or economic measure or index or pursuant to a formula, the manner in which such amounts shall be determined; |
| (12) | if other than the currency of the United States of America, the currency, currencies or currency units in which the principal of or premium, if any, or interest on any Securities of the series shall be payable and the manner of determining the equivalent thereof in the currency of the United States of America for any purpose, including for purposes of the definition of “Outstanding” in Section 101; |
12
| (13) | if the principal of or premium, if any, or interest on any Securities of the series is to be payable, at the election of the Company or the Holder thereof, in one or more currencies or currency units other than that or those in which such Securities are stated to be payable, the currency, currencies or currency units in which the principal of or premium, if any, or interest on such Securities as to which such election is made shall be payable, the periods within which and the terms and conditions upon which such election is to be made and the amount so payable (or the manner in which such amount shall be determined); |
| (14) | if other than the entire principal amount thereof, the portion of the principal amount of any Securities of the series which shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 502; |
| (15) | if the principal amount payable at the Stated Maturity of any Securities of the series will not be determinable as of any one or more dates prior to the Stated Maturity, the amount which shall be deemed to be the principal amount of such Securities as of any such date for any purpose thereunder or hereunder, including the principal amount thereof which shall be due and payable upon any Maturity other than the Stated Maturity or which shall be deemed to be Outstanding as of any date prior to the Stated Maturity (or, in any such case, the manner in which such amount deemed to be the principal amount shall be determined); |
| (16) | if other than by a Board Resolution, the manner in which any election by the Company to defease any Securities of the series pursuant to Section 1302 or Section 1303 shall be evidenced; whether any Securities of the series other than Securities denominated in U.S. dollars and bearing interest at a fixed rate are to be subject to Section 1302 or Section 1303; or, in the case of Securities denominated in U.S. dollars and bearing interest at a fixed rate, if applicable, that the Securities of the series, in whole or any specified part, shall not be defeasible pursuant to Section 1302 or Section 1303 or both such Sections; |
| (17) | if applicable, that any Securities of the series shall be issuable in whole or in part in the form of one or more Global Securities and, in such case, the respective Depositaries for such Global Securities, the form of any legend or legends which shall be borne by any such Global Security in addition to or in lieu of that set forth in Section 202 and any circumstances in addition to or in lieu of those set forth in clause (2) of the eighth paragraph of Section 305 in which any such Global Security may be exchanged in whole or in part for Securities registered, and any transfer of such Global Security in whole or in part may be registered, in the name or names of Persons other than the Depositary for such Global Security or a nominee thereof and any other provisions governing exchanges or transfers of such Global Security; |
| (18) | any addition to, deletion from or change in the Events of Default which applies to any Securities of the series and any change in the right of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 502; |
| (19) | any addition to, deletion from or change in the covenants set forth in Article X which applies to Securities of the series; |
| (20) | if the Securities of the series are to be convertible into or exchangeable for cash and/or any securities or other property of any Person (including the Company), the terms and conditions upon which such Securities will be so convertible or exchangeable; |
| (21) | whether the Securities of the series will be guaranteed by any Person or Persons and, if so, the identity of such Person or Persons, the terms and conditions upon which such Securities shall be guaranteed and, if applicable, the terms and conditions upon which such guarantees may be subordinated to other indebtedness of the respective guarantors; |
13
| (22) | whether the Securities of the series will be secured by any collateral and, if so, the terms and conditions upon which such Securities shall be secured and, if applicable, upon which such liens may be subordinated to other liens securing other indebtedness of the Company or any guarantor; |
| (23) | if other than Wilmington Trust, National Association is to act as Trustee for the Securities of such series, the name and Corporate Trust Office of such Trustee; |
| (24) | any other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture, except as permitted by Section 901(11)); and |
| (25) | the CUSIP and/or ISIN number(s) of the Securities of the series. |
All Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to the Board Resolution referred to above or pursuant to authority granted by one or more Board Resolutions and, subject to Section 303, set forth, or determined in the manner provided, in the Officer’s Certificate referred to above or in any such indenture supplemental hereto.
All Securities of any one series need not be issued at one time and, unless otherwise provided in or pursuant to the Board Resolution referred to above and, subject to Section 303, set forth, or determined in the manner provided, in the Officer’s Certificate referred to above or pursuant to authority granted by one or more Board Resolutions or in any such indenture supplemental hereto with respect to a series of Securities, additional Securities of a series may be issued, at the option of the Company, without the consent of any Holder, at any time and from time to time.
If any of the terms of the series are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officer’s Certificate setting forth the terms of the series.
Section 302. Denominations.
The Securities of each series shall be issuable only in registered form without coupons and only in such denominations as shall be specified as contemplated by Section 301. In the absence of any such specified denomination with respect to the Securities of any series, the Securities of such series shall be issuable in minimum denominations of $2,000 and any integral multiples of $1,000 in excess thereof.
Section 303. Execution, Authentication, Delivery and Dating.
At least one Officer of the Company shall execute the Securities on behalf of the Company by manual, facsimile or other electronic (including “.pdf”) signature.
Securities bearing the manual, facsimile or electronic signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with the Company Order shall authenticate and deliver such Securities. If the form or terms of the Securities of the series have been established by or pursuant to one or more Board Resolutions or pursuant to authority granted by one or more Board Resolutions as permitted by Sections 201 and 301, in authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and, subject to Section 601, shall be fully protected in relying upon, an Opinion of Counsel stating,
14
| (1) | if the form of such Securities has been established by or pursuant to Board Resolution or pursuant to authority granted by one or more Board Resolutions as permitted by Section 201, that such form has been established in conformity with the provisions of this Indenture; |
| (2) | if the terms of such Securities have been established by or pursuant to Board Resolution or pursuant to authority granted by one or more Board Resolutions as permitted by Section 301, that such terms have been established in conformity with the provisions of this Indenture; and |
| (3) | that such Securities, when authenticated by the Trustee and issued and delivered by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company enforceable in accordance with their terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles and (iii) an implied covenant of good faith and fair dealing. |
If such form or terms have been so established, the Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will adversely affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding paragraph of this Section 303, if all Securities of a series are not to be originally issued at one time, including in the event that the aggregate principal amount of a series of Outstanding Securities is increased as contemplated by Section 301, it shall not be necessary to deliver the Officer’s Certificate otherwise required pursuant to Section 301 or Opinion of Counsel otherwise required pursuant to this Section 303 at or prior to the authentication of each Security of such series if such documents are delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein executed by the Trustee by manual signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in Section 309, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company may execute, and, upon Company Order, the Trustee shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities of such series in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the Officer or Officers executing such Securities may determine, as evidenced by their execution thereof.
If temporary Securities of any series are issued, the Company will cause definitive Securities of such series to be prepared without unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series at the office or agency of the Company in a Place of Payment for such series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor one or more definitive Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount. Until so exchanged, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series and tenor.
15
Section 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register (the register maintained in such office and in any other office or agency of the Company in a Place of Payment being herein sometimes collectively referred to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Securities and of transfers of Securities. The Trustee is hereby appointed “Security Registrar” for the purpose of registering Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of a series at the office or agency of the Company in a Place of Payment for such series, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of the same series, of any authorized denominations and of like tenor and principal amount.
At the option of the Holder, Securities of any series may be exchanged for other Securities of the same series, of any authorized denominations and of like tenor and principal amount, upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities, which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed, by the Holder thereof or such Holder’s attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
If the Securities of any series (or of any series and specified tenor) are to be redeemed in part, the Company shall not be required (A) to issue, register the transfer of or exchange any Securities of such series (or of such series and specified tenor, as the case may be) during a period beginning at the opening of business 15 days before sending a notice of redemption of any such Securities selected for redemption under Section 1103 and ending at the close of business on the day of such mailing, or (B) to register the transfer of or exchange any Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part.
The provisions of clauses (1), (2), (3) and (4) of this paragraph shall apply only to Global Securities:
| (1) | Each Global Security authenticated under this Indenture shall be registered in the name of the Depositary designated for such Global Security or a nominee thereof and delivered to such Depositary or a nominee thereof or custodian therefor, and each such Global Security shall constitute a single Security for all purposes of this Indenture. |
| (2) | Notwithstanding any other provision in this Indenture, and subject to such applicable provisions, if any, as may be specified as contemplated by Section 301, no Global Security may be exchanged in whole or in part for Securities registered, and no transfer of a Global Security in whole or in part may be registered, in the name of any Person other than the Depositary for such Global Security or a |
16
| nominee thereof unless (A) such Depositary has notified the Company that it is unwilling or unable or no longer permitted under applicable law to continue as Depositary for such Global Security, (B) there shall have occurred and be continuing an Event of Default with respect to such Global Security, (C) the Company so directs the Trustee by a Company Order or (D) there shall exist such circumstances, if any, in addition to or in lieu of the foregoing as have been specified for this purpose as contemplated by Section 301. |
| (3) | Subject to clause (2) above and to such applicable provisions, if any, as may be specified as contemplated by Section 301, any exchange of a Global Security for other Securities may be made in whole or in part, and all Securities issued in exchange for a Global Security or any portion thereof shall be registered in such names as the Depositary for such Global Security shall direct. |
| (4) | Every Security authenticated and delivered upon registration of transfer of, or in exchange for or in lieu of, a Global Security or any portion thereof, whether pursuant to this Section 305, Section 304, 306, 906 or 1107 or otherwise, shall be authenticated and delivered in the form of, and shall be, a Global Security, unless such Security is registered in the name of a Person other than the Depositary for such Global Security or a nominee thereof. |
None of the Trustee, the Security Registrar or any Paying Agent shall have any responsibility or obligation to any beneficial owner of an interest in a Global Security, any agent member or other member of, or a participant in, Depositary or other Person with respect to the accuracy of the records of Depositary or any nominee or participant or member thereof, with respect to any ownership interest in the Securities or with respect to the delivery to any agent member or other participant, member, beneficial owner or other Person (other than Depositary) of any notice or the payment of any amount or delivery of any Securities (or other security or property) under or with respect to such Securities. All notices and communications to be given to the Holders and all payments to be made to Holders in respect of the Securities shall be given or made only to or upon the order of the registered Holders (which shall be Depositary or its nominee in the case of a Global Security). The rights of beneficial owners in any Global Security shall be exercised only through Depositary, subject to its applicable rules and procedures. The Trustee, Security Registrar and any Paying Agent may rely and shall be fully protected in relying upon information furnished by Depositary with respect to its agent members and other members, participants and any beneficial owners in the Securities.
Neither the Trustee nor the Security Registrar or any Paying Agent shall have any obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Securities (including any transfers between or among direct participants or indirect participants in any Global Security) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate, upon receipt of a Company Order, and deliver in exchange therefor a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (1) evidence to their satisfaction of the destruction, loss or theft of any Security and (2) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a protected purchaser, the Company shall execute and the Trustee shall authenticate, upon receipt of a Company Order, and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security.
17
Upon the issuance of any new Security under this Section 306, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of counsel to the Company and the fees and expenses of the Trustee and its counsel) connected therewith.
Every new Security of any series issued pursuant to this Section 306 in lieu of any mutilated, destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company, whether or not the mutilated, destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of such series duly issued hereunder.
The provisions of this Section 306 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with respect to any series of Securities, interest on any Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest.
Any interest on any Security of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called “Defaulted Interest”) shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in clause (1) or (2) below:
| (1) | The Company may elect to make payment of any Defaulted Interest payable on Securities of a series to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security of such series and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Company shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Company shall promptly notify the Trustee of such Special Record Date and the Company or the Trustee, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be given to each Holder of Securities of such series in the manner set forth in Section 106, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (2). |
| (2) | The Company may make payment of any Defaulted Interest on the Securities of any series in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee. |
18
Subject to the foregoing provisions of this Section 307, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
In the case of any Security which is converted after any Regular Record Date and on or prior to the next succeeding Interest Payment Date (other than any Security whose Maturity is prior to such Interest Payment Date), interest whose Stated Maturity is on such Interest Payment Date shall be payable on such Interest Payment Date notwithstanding such conversion, and such interest (whether or not punctually paid or made available for payment) shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on such Regular Record Date. Except as otherwise expressly provided in the immediately preceding sentence, in the case of any Security which is converted, interest whose Stated Maturity is after the date of conversion of such Security shall not be payable. Notwithstanding the foregoing, the terms of any Security that may be converted may provide that the provisions of this paragraph do not apply, or apply with such additions, changes or omissions as may be provided thereby, to such Security.
Section 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal of and premium, if any, and, subject to Section 307, any interest on such Security and for all other purposes whatsoever, whether or not such Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.
Section 309. Cancellation.
All Securities surrendered for payment, redemption, registration of transfer or exchange or conversion or for credit against any sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly cancelled by it. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities previously authenticated hereunder which the Company has not issued and sold, and all Securities so delivered shall be promptly cancelled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section 309, except as expressly permitted by this Indenture. All cancelled Securities held by the Trustee shall be disposed of in accordance with its customary procedures and the record retention requirements of the Securities Act.
Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Securities of any series, interest on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.
Section 311. CUSIP Numbers.
The Company in issuing any series of the Securities may use “CUSIP” or “ISIN” numbers and/or other similar numbers, if then generally in use, and thereafter with respect to such series, the Trustee may use such numbers in any notice of redemption with respect to such series; provided , the Trustee shall have no liability for any defect in the CUSIP and ISIN numbers as they appear on any Security, notice or elsewhere and that that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities of such series or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Securities of such series, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company shall promptly notify the Trustee in writing of any changes in the CUSIP or ISIN number(s).
19
Section 312. Original Issue Discount.
If any of the Securities is an Original Issue Discount Security, the Company shall file with the Trustee promptly at the end of each calendar year (1) a written notice specifying the amount of original issue discount (including daily rates and accrual periods) accrued on such Outstanding Original Issue Discount Securities as of the end of such year and (2) such other specific information relating to such original issue discount as may then be relevant under the Internal Revenue Code.
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture.
This Indenture shall, upon Company Request, cease to be of further effect with respect to any series of Securities specified in such Company Request (except as to any surviving rights of registration of transfer or exchange of Securities of such series herein expressly provided for), and the Trustee, at the request and expense of the Company, shall execute such instruments reasonably requested by the Company acknowledging satisfaction and discharge of this Indenture as to such series, when:
| (1) | either |
| (A) | all Securities of such series theretofore authenticated and delivered (other than (i) Securities which have been mutilated, destroyed, lost or stolen and which have been replaced or paid as provided in Section 306 and (ii) Securities for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 1003) have been delivered to the Trustee for cancellation; or |
| (B) | all such Securities of such series not theretofore delivered to the Trustee for cancellation |
| (i) | have become due and payable, or |
| (ii) | will become due and payable at their Stated Maturity within one year of the date of deposit, or |
| (iii) | are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company, and the Company, in the case of (i), (ii) or (iii) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose money in an amount sufficient to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal and premium, if any, and interest to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be; |
| (2) | the Company has paid or caused to be paid all other sums payable hereunder by the Company; and |
| (3) | the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture as to such series have been complied with. |
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 607 and, if money shall have been deposited with the Trustee pursuant to subclause (B) of clause (1) of this Section 401, the obligations of the Trustee under Section 402 and the last paragraph of Section 1003 shall survive.
20
Section 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money deposited with the Trustee pursuant to Section 401 shall be held in trust and applied by it, in accordance with the provisions of the applicable series of Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal and premium, if any, and interest for whose payment such money has been deposited with the Trustee. All money deposited with the Trustee pursuant to Section 401 (and held by it or any Paying Agent) for the payment of Securities subsequently converted into other property shall be returned to the Company upon Company Request. The Company may direct by a Company Order the investment of any money deposited with the Trustee pursuant to Section 401, without distinction between principal and income, in (1) United States Treasury securities with a maturity of one year or less or (2) a money market fund that invests solely in short-term United States Treasury securities (including money market funds for which the Trustee or an affiliate of the Trustee serves as investment advisor, administrator, shareholder, servicing agent and/or custodian or sub-custodian, notwithstanding that (a) the Trustee or an affiliate of the Trustee charges and collects fees and expenses from such funds for services rendered and (b) the Trustee charges and collects fees and expenses for services rendered pursuant to this Indenture at any time) and from time to time the Company may direct the reinvestment of all or a portion of such money in other securities or funds meeting the criteria specified in clause (1) or (2) of this Section 402. In the absence of receipt of such Company Order, the Trustee shall hold all such funds uninvested. The Trustee shall have no responsibility or liability for any loss which may result from any investment or sale made pursuant to such Company Order. The Trustee is hereby authorized, in making or disposing of any investment permitted by this Indenture, to deal with itself (in its individual capacity) or with any one or more of its affiliates, whether it or any such affiliate is acting as agent of the Trustee or for any third person or dealing as principal for its own account. The Parties acknowledge that the Trustee is not providing investment supervision, recommendations, or advice.
ARTICLE V
REMEDIES
Section 501. Events of Default.
Except as may be otherwise provided pursuant to Section 301 for Securities of any series, an “Event of Default” means, whenever used herein or in a Security issued hereunder with respect to Securities of any series, any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
| (1) | the Company defaults in the payment of any installment of interest on any Security of such series for 30 consecutive days after becoming due (subject to the deferral of any interest payment in case of an extension period); |
| (2) | the Company defaults in the payment of the principal of or premium, if any, on any Security of such series when the same becomes due and payable at its Stated Maturity, upon optional redemption, upon declaration or otherwise; |
| (3) | the Company defaults in the deposit of any sinking fund payment, which continues for 30 consecutive days after becoming due by the terms of a Security of such series; |
| (4) | the Company defaults in the performance of, or breaches, any of its covenants and agreements in respect of any Security of such series contained in this Indenture or in the Securities of such series (other than those referred to in (1), (2) or (3) above), and such default or breach continues for a period of 90 days (except that, in the case of a default in the performance or breach of a reporting covenant, such period shall be 180 days) after the notice specified below; |
21
| (5) | the Company, pursuant to or within the meaning of the Bankruptcy Law (as defined below): |
| (A) | commences a voluntary case or proceeding; |
| (B) | consents to the entry of an order for relief against it in an involuntary case or proceeding; |
| (C) | consents to the appointment of a Custodian (as defined below) of it or for all or substantially all of its property; |
| (D) | makes a general assignment for the benefit of its creditors; |
| (E) | files a petition in bankruptcy or answer or consent seeking reorganization or relief; |
| (F) | consents to the filing of such petition or the appointment of or taking possession by a Custodian; or |
| (G) | takes any comparable action under any foreign laws relating to insolvency; |
| (6) | a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that: |
| (A) | is for relief against the Company in an involuntary case, or adjudicates the Company insolvent or bankrupt; |
| (B) | appoints a Custodian of the Company or for all or substantially all of the property of the Company; or |
| (C) | orders the winding-up or liquidation of the Company (or any similar relief is granted under any foreign laws) and the order or decree remains unstayed and in effect for 90 days; or |
| (7) | any other Event of Default provided with respect to Securities of such series occurs. |
The term “Bankruptcy Law” means Title 11, United States Code, or any similar Federal or state or foreign law for the relief of debtors. The term “Custodian” means any custodian, receiver, trustee, assignee, liquidator or other similar official under any Bankruptcy Law.
A Default with respect to Securities of any series under clause (4) of this Section 501 shall not be an Event of Default until the Trustee (by written notice to the Company) or the Holders of at least 30% in aggregate principal amount of the outstanding Securities of such series (by written notice to the Company and the Trustee) gives notice of the Default and the Company does not cure such Default within the time specified in clause (4) after receipt of such notice. Such notice must specify the Default, demand that it be remedied and state that such notice is a “Notice of Default.”
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the time Outstanding (other than an Event of Default specified in Section 501(5) or (6)) occurs and is continuing, then in every such case the Trustee or the Holders of not less than 30% in aggregate principal amount of the Outstanding Securities of such series may declare the principal amount of all the Securities of such series (or, if any Securities of such series are Original Issue Discount Securities, such portion of the principal amount of such Securities as may be specified by the terms thereof), together with any accrued and unpaid interest thereon, to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration, such principal amount (or specified amount), together with any accrued and unpaid interest thereon, shall become immediately due and payable. If an Event of Default specified in Section 501(5) or (6) with respect to the Securities of any series at the time Outstanding occurs, the principal amount of all the Securities of such series (or, in the case of any Security of such series which specifies an amount to be due and payable thereon upon acceleration of the Maturity thereof, such amount as may be specified by the terms thereof), together with any accrued and unpaid interest thereon, shall automatically, and without any declaration or other action on the part of the Trustee or any Holder, become immediately due and payable. Upon payment of such amount, all obligations of the Company in respect of the payment of principal and interest of the Securities of such series shall terminate.
22
Except as may otherwise be provided pursuant to Section 301 for all or any specific Securities of any series, at any time after such a declaration of acceleration with respect to the Securities of any series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article V provided, the Holders of a majority in aggregate principal amount of the Outstanding Securities of such series, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if:
| (1) | the Company has paid or deposited with the Trustee a sum sufficient to pay: |
| (A) | all overdue interest on all Securities of such series, |
| (B) | the principal of and premium, if any, on any Securities of such series which have become due otherwise than by such declaration of acceleration and any interest thereon at the rate or rates prescribed therefor in the Securities of such series, |
| (C) | to the extent that payment of such interest is lawful, interest upon overdue interest at the rate or rates prescribed therefor in such Securities, and |
| (D) | all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel; and |
| (2) | all Events of Default with respect to Securities of such series, other than the non-payment of the principal of Securities of such series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 512. |
No such rescission shall affect any subsequent default or impair any right consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if (1) default is made in the payment of any interest on any Security when such interest becomes due and payable and such default continues for a period of 30 days, or (2) default is made in the payment of the principal of or premium, if any, on any Security at the Maturity thereof, it will, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal and premium, if any, and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal and premium and on any overdue interest, at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall deem necessary to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any other obligor upon the Securities), its property or its creditors, the Trustee shall be entitled and empowered, by intervention in such proceeding or otherwise, to take any and all actions authorized under the Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such proceeding. In particular, the Trustee shall be authorized to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any
23
custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it and any predecessor Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding; provided, however, that the Trustee may, on behalf of the Holders, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors’ or other similar committee.
Section 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of, and any indemnities and other amounts owed to, the Trustee, any predecessor Trustee under Section 607, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.
Section 506. Application of Money Collected.
Any money or property collected by the Trustee pursuant to this Article V shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money or property on account of principal or premium, if any, or interest, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee, the Paying Agent and the Security Registrar under Section 607;
SECOND: To the payment of the amounts then due and unpaid for principal of and premium, if any, and interest on the Securities in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal and premium, if any, and interest, respectively; and
THIRD: To the payment of the remainder, if any, to the Company.
Section 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver, assignee, trustee, liquidator or sequestrator (or similar official) or for any other remedy hereunder, unless:
| (1) | An Event of Default has occurred and is continuing and such Holder has previously given written notice to the Trustee of such continuing Event of Default with respect to the Securities of such series; |
| (2) | the Holders of not less than 30% in aggregate principal amount of the Outstanding Securities of such series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder; |
| (3) | such Holder or Holders have offered, and if requested, provided, to the Trustee security and/or indemnity satisfactory to it against the costs, expenses and liabilities to be incurred in compliance with such request; |
24
| (4) | the Trustee has failed to institute any such proceeding for 60 days after its receipt of such notice, request and offer of indemnity; and |
| (5) | no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in aggregate principal amount of the Outstanding Securities of such series; |
it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all of such Holders.
Section 508. Unconditional Right of Holders to Receive Principal, Premium and Interest and to Convert Securities.
Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of and premium, if any, and, subject to Section 307, interest on such Security on the respective Stated Maturities expressed in such Security (or, in the case of redemption or repayment, on the Redemption Date or date for repayment, as the case may be, and, if the terms of such Security so provide, to convert such Security in accordance with its terms) and to institute suit for the enforcement of any such payment and, if applicable, any such right to convert, and such rights shall not be impaired without the consent of such Holder.
Section 509. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of Section 306, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 510. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article V or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 511. Control by Holders.
Subject to Section 603(5), the Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of any series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such series; provided that
| (1) | such direction shall not be in conflict with any rule of law or with this Indenture or be determined by the Trustee to be unduly prejudicial to the rights of any other Holder or expose the Trustee to the risk of personal liability (provided, that the Trustee shall not have an affirmative duty to determine whether such direction is prejudicial to any Holder), and |
25
| (2) | the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction. |
Section 512. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of any series may on behalf of the Holders of all the Securities of such series waive any past default hereunder with respect to such series and its consequences, except a default
| (1) | in the payment of the principal of or premium, if any, or interest on any Security of such series, or |
| (2) | in respect of a covenant or provision hereof which under Article IX cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected. |
Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture, but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 513. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, a court may require any party litigant in such suit to file an undertaking to pay the costs of such suit, and may assess reasonable costs against any such party litigant, in the manner and to the extent provided in the Trust Indenture Act; provided that neither this Section 513 nor the Trust Indenture Act shall be deemed to authorize any court to require such an undertaking or to make such an assessment in any suit instituted by the Company or the Trustee, a suit by a Holder under Section 508, or a suit by Holders of more than 10% in aggregate principal amount of the Outstanding Securities.
Section 514. Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any usury, stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
Section 515. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
26
ARTICLE VI
THE TRUSTEE
Section 601. Certain Duties and Responsibilities of Trustee.
| (1) | Except during the continuance of an Event of Default with respect to any series of Securities, |
| (A) | the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture with respect to the Securities of such series, and no implied covenants or obligations shall be read into this Indenture against the Trustee with respect to such series; and |
| (B) | in the absence of bad faith on its part, the Trustee may conclusively rely with respect to the Securities of such series, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein). |
| (2) | In case an Event of Default with respect to any series of Securities has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture with respect to the Securities of such series, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs. |
| (3) | No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct (in each case, as determined by a final non-appealable order of a court of competent jurisdiction), except that: |
| (A) | this Section 601(3) shall not be construed to limit the effect of Section 601(1); |
| (B) | the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; |
| (C) | the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of a majority in aggregate principal amount of the Outstanding Securities of any series, determined as provided in Sections 101, 104 and 511, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such series; and |
| (D) | no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it believes that repayment of such funds or satisfactory indemnity against such risk or liability is not assured to it. |
| (4) | Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 601. |
Section 602. Notice of Defaults.
If a Default or an Event of Default occurs with respect to Securities of any series and is continuing and if it is actually known to a Responsible Officer of the Trustee, the Trustee shall mail to each Holder of Securities of such series notice of the Default within 90 days after it is actually known to a Responsible Officer or written notice of it is received by a Responsible Officer and such notice references the Securities of such series and this Indenture. Except in the case of a Default in payment of principal of or interest on any Security, the Trustee may withhold the notice if and so long as the Trustee in good faith determines that withholding the notice is not opposed to the interests of Holders of Securities of such series.
27
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
| (1) | the Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, judgment, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties, not only as to due execution, validity and effectiveness, but also as to the truth and accuracy of any information contained therein; |
| (2) | if so requested by the Trustee, any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order and Trustee shall have no responsibility or liability for any losses or damages of any nature that may arise from any action taken or not taken by the Trustee in accordance with such Company Request or Company Order, and any resolution of the Board of Directors shall be sufficiently evidenced by a Board Resolution thereof; |
| (3) | whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and conclusively rely upon an Officer’s Certificate or Opinion of Counsel and shall be fully protected acting or refraining from acting in accordance with such Officer’s Certificate or Opinion of Counsel; |
| (4) | the Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon; |
| (5) | the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered, and if requested, provided, to the Trustee security and/or indemnity satisfactory to it against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction; |
| (6) | the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, judgment, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney at the sole cost of the Company and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation; |
| (7) | the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder; |
| (8) | the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder and to its agents; |
| (9) | the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture; |
28
| (10) | in no event shall the Trustee be responsible or liable for special, indirect, incidental, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action; |
| (11) | in no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, pandemics, epidemics, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility (it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances); |
| (12) | the Trustee shall not be deemed to have notice of any default or Event of Default unless a Responsible Officer shall have actual knowledge thereof or unless written notice of any event which is in fact such a default shall have been received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture; |
| (13) | the permissive rights of the Trustee to take certain action under this Indenture shall not be construed as a duty: and |
| (14) | The Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder. |
Section 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee’s certificates of authentication, shall be taken as the statements of the Company, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities. The Trustee shall not be accountable for the use or application by the Company of Securities or the proceeds thereof.
Section 605. May Hold Securities.
The Trustee, any Paying Agent, any Security Registrar or any other agent of the Company, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject to Sections 608 and 613, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Paying Agent, Security Registrar or such other agent.
Section 606. Money Held in Trust.
Money held by the Trustee in trust hereunder shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder or to invest any such money except as otherwise agreed in writing with the Company.
Section 607. Compensation and Reimbursement.
The Company agrees:
| (1) | to pay to the Trustee from time to time such compensation as shall be agreed to in writing between the parties hereto for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust); |
29
| (2) | except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the reasonable expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or willful misconduct (as determined by a final nonappealable order of a court of competent jurisdiction); and |
| (3) | to defend, release, and indemnify the Trustee, its directors, officers, employees and agents (collectively, the “Indemnified Parties”) for, and to hold it harmless against, any loss, liability or expense (including, without limitation, attorney’s fees and expenses) , arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the enforcement of its right to indemnity thereunder and including the reasonable costs and expenses of defending itself against any claim (regardless of whether such claim is asserted by the Company, a Holder or any other Person) or liability in connection with the exercise or performance of any of its powers or duties hereunder, except to the extent the same shall have been finally adjudicated by a court of competent jurisdiction to have been directly caused by the an Indemnified Party’s negligence or willful misconduct. |
When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 501(5) or (6), the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute administrative expenses for purposes of priority under any applicable Federal, state or non-United States bankruptcy, insolvency or other similar law.
The Trustee shall have a lien prior to the Securities as to all property and funds held by it hereunder for any amount owing it or any predecessor Trustee pursuant to this Section 607, except with respect to funds held in trust for the benefit of the Holders of Securities.
The provisions of this Section 607 shall survive the satisfaction, discharge or termination of this Indenture and the resignation or removal of the Trustee.
Section 608. Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture.
To the extent permitted by the Trust Indenture Act, the Trustee shall not be deemed to have a conflicting interest by virtue of being a trustee under this Indenture with respect to Securities of more than one series.
Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be one (and only one) Trustee hereunder with respect to the Securities of each series, which may be Trustee hereunder for Securities of one or more other series. Each Trustee shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such, has a combined capital and surplus of at least $50,000,000. If any such Person publishes reports of condition at least annually, pursuant to law or to the requirements of its supervising or examining authority, then for the purposes of this Section 609 and to the extent permitted by the Trust Indenture Act, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent annual report of condition so published. If at any time the Trustee with respect to the Securities of any series shall cease to be eligible in accordance with the provisions of this Section 609, it shall resign immediately in the manner and with the effect hereinafter specified in this Article VI.
30
Section 610. Resignation and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article VI shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 611.
The Trustee may resign at any time with respect to the Securities of one or more series by giving 30 days’ prior written notice thereof to the Company. If the instrument of acceptance by a successor Trustee required by Section 611 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in aggregate principal amount of the Outstanding Securities of such series, upon 30 days’ prior written notice delivered to the Trustee and to the Company. If the instrument of acceptance by a successor Trustee required by Section 611 shall not have been delivered to the Trustee within 30 days after the giving of such notice of removal, the Trustee being removed may petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
If at any time:
| (1) | the Trustee shall fail to comply with Section 608 after written request therefor by the Company or any Holder who has been a bona fide Holder of a Security for at least six months, or |
| (2) | the Trustee shall cease to be eligible under Section 609 and shall fail to resign after written request therefor by the Company or any such Holder, or |
| (3) | the Trustee shall become incapable of acting or shall be adjudged bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then, in any such case, (A) the Company may remove the Trustee with respect to all Securities or (B) subject to Section 513, Holders of 10% in aggregate principal amount of Securities of any series who have been bona fide Holders of such Securities for at least six months may, on behalf of themselves and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities and the appointment of a successor Trustee or Trustees. |
If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities of one or more series, the Company shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular series) and shall comply with the applicable requirements of Section 611. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in aggregate principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, or, if the Company has previously appointed a successor Trustee, such successor Trustee, the successor Trustee so appointed by such Holders shall, forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 611, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Company or the Holders and accepted appointment in the manner required by Section 611, Holders of 10% in aggregate principal amount of Securities of any series who have been bona fide Holders of Securities of such series for at least six months may, on behalf of themselves and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
The Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series to all Holders of Securities of such series in the manner provided in Section 106. Each notice shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office.
31
Section 611. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company and the retiring Trustee a written instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee, but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver a written instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; provided all sums owing to the retiring Trustee hereunder have been paid and subject to the lien provided for in Section 607 hereof.
Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in the first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article VI.
Section 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder and will have and succeed to the rights, powers, duties, immunities and privileges as its predecessor; without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion, consolidation or sale to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities; and in case at that time any Securities shall not have been authenticated, any successor to the Trustee may authenticate such Securities either in the name of any predecessor hereunder or in the name of the successor to the Trustee; and in all such cases such certificates shall have the full force which it is anywhere in the Securities or in this Indenture provided that the certificate of the Trustee shall have.
32
Section 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company (or any other obligor upon the Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Company (or any such other obligor).
ARTICLE VII
HOLDERS’ LISTS AND REPORTS BY THE TRUSTEE
AND THE COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of Holders.
If the Trustee is not the Security Registrar, the Company shall cause the Security Registrar to furnish to the Trustee, in writing at least five Business Days before each Interest Payment Date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of Holders of Securities of each series.
Section 702. Preservation of Information; Communications to Holders.
The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent list furnished to the Trustee as provided in Section 701 and the names and addresses of Holders received by the Trustee in its capacity as Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 701 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to their rights under this Indenture or under the Securities, and the corresponding rights and privileges of the Trustee, shall be as provided by the Trust Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held accountable by reason of any disclosure of information as to names and addresses of Holders made pursuant to the Trust Indenture Act.
Section 703. Reports by Trustee.
The Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto. If required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within sixty days after each March 15 following the date of the initial issuance of Securities under this Indenture deliver to Holders a brief report, dated as of such March 15 which complies with the provisions of such Section 313(a). The Trustee shall promptly deliver to the Company a copy of any report it delivers to Holders pursuant to this Section 703.
A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange and automated quotation system, if any, upon which any Securities are listed, with the Commission and the Company. The Company will notify the Trustee in writing when any Securities are listed on any stock exchange or automated quotation system or delisted therefrom.
Section 704. Reports by the Company.
The Company shall comply with all the applicable provisions of the Trust Indenture Act. Delivery of reports, information and documents to the Trustee is for informational purposes only and shall not constitute a representation or warranty as to the accuracy or completeness of the reports, information and documents. The Trustee’s receipt of such shall not constitute actual or constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates).
33
ARTICLE VIII
CONSOLIDATION, MERGER AND SALE OF ASSETS
Section 801. Company May Merge or Transfer Assets on Certain Terms.
The Company may consolidate with or merge with or into, or sell, transfer, lease or convey all or substantially all of its properties and assets to, in one transaction or a series of related transactions, any other Person, provided that:
| (1) | the Company shall be the continuing entity, or the resulting, surviving or transferee Person shall be a corporation, limited liability company, partnership (including a limited partnership), trust or other entity organized and validly existing under the laws of any domestic or foreign jurisdiction, and such successor Person (if not the Company) shall expressly assume, by an indenture supplemental hereto or other document or instrument, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all the obligations of the Company under the Securities and this Indenture and, for each Security that by its terms provides for conversion, shall have provided for the right to convert such Security in accordance with its terms; |
| (2) | immediately after giving effect to such transaction, no Event of Default shall have occurred and be continuing; and |
| (3) | the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, sale, transfer, lease or conveyance and such supplemental indenture, if any, complies with this Indenture (except that such Opinion of Counsel need not opine as to clause (2) above). |
Section 802. Successor Person Substituted.
Upon any consolidation of the Company with, or merger of the Company into, any other Person or any sale, transfer, lease or conveyance of all or substantially all of the properties and assets of the Company, in each case in accordance with Section 801, the successor Person shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, with the same effect as if such successor Person had been an original party to this Indenture, and the Company shall be released from all of its liabilities and obligations under this Indenture and the Securities.
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:
| (1) | to add to the covenants for the benefit of the Holders of all or any series of Securities (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the benefit of such series) or to surrender any right or power herein conferred upon the Company; |
| (2) | to evidence the succession of another Person to the Company, or successive successions, and the assumption by the successor Person of the covenants, agreements and obligations of the Company pursuant to Article VIII; |
| (3) | to add any additional Events of Default for the benefit of the Holders of all or any series of Securities (and if such additional Events of Default are to be for the benefit of less than all series of Securities, stating that such additional Events of Default are expressly being included solely for the benefit of such series); |
34
| (4) | to add one or more guarantees for the benefit of the Holders of the Securities, and to evidence the release and discharge of any guarantor from its obligations under its guarantee of Securities and its obligations under this Indenture in accordance with the terms of this Indenture; |
| (5) | to secure the Securities; |
| (6) | to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 611; |
| (7) | to provide for the issuance of additional Securities of any series; |
| (8) | to establish the form or terms of Securities of any series as permitted by Sections 201 and 301; |
| (9) | to comply with the rules of any applicable Depositary; |
| (10) | to add to or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of Securities in uncertificated form; |
| (11) | to add to, change or eliminate any of the provisions of this Indenture in respect of one or more series of Securities; provided that any such addition, change or elimination (A) shall neither (i) apply to any Security of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision nor (ii) modify the rights of the Holder of any such Security with respect to such provision or (B) shall become effective only when there is no Security described in clause (i) Outstanding; |
| (12) | to comply with requirements of the SEC in order to effect or maintain the qualification of the indenture under the Trust Indenture Act, as amended; |
| (13) | to conform any provision of this Indenture, any supplemental indenture, one or more series of Securities or any related guarantees or security documents to the description of such securities contained in a prospectus, prospectus supplement, offering memorandum or similar document with respect to the offering of the Securities of such series; |
| (14) | to cure any ambiguity, omission or mistake, or to correct or supplement any provision of this Indenture which may be defective or inconsistent with any other provision herein; and |
| (15) | to change any other provision under this Indenture; provided that such action pursuant to this clause (15) shall not materially adversely affect the interests of the Holders of Securities of any applicable series. |
Section 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of each series affected by such supplemental indenture (including consents obtained in connection with a tender offer or exchange for Securities), by Act of said Holders delivered to the Company and the Trustee, the Company and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of Securities of such series under this Indenture; provided, however, no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security of such series affected thereby:
| (1) | change the Stated Maturity of the principal of, or any installment of principal of or interest on, any Security; |
35
| (2) | reduce the principal amount of any Security or reduce the amount of the principal of an Original Issue Discount Security or any other Security which would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 503, or reduce the rate of interest on any Security; |
| (3) | reduce any premium payable upon the redemption of or change the date on which any Security may or must be redeemed; |
| (4) | change the coin or currency in which the principal of or premium, if any, or interest on any Security is payable; |
| (5) | impair the right of any Holder to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date); |
| (6) | reduce the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture; |
| (7) | modify any of the provisions of this Section 902, Section 512 or Section 1005, except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby; provided, however, that this clause shall not be deemed to require the consent of any Holder with respect to changes in the references to “the Trustee” and concomitant changes in this Section 902 and Section 1005, or the deletion of this proviso, in accordance with the requirements of Sections 611 and 901(6); or |
| (8) | if the Securities of any series are convertible into or for any other securities or property of the Company, make any change that adversely affects in any material respect the right to convert any Security of such series (except as permitted by Section 901) or decrease the conversion rate or increase the conversion price of any such Security of such series, unless such decrease or increase is permitted by the terms of such Security. |
A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section 902 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.
After a supplemental indenture under this Section 902 becomes effective, the Company shall deliver to the Trustee a notice briefly describing such supplemental indenture or a copy of such supplemental indenture and, at the Company’s written request, the Trustee shall deliver such notice or supplemental indenture to Holders affected thereby. Any failure of the Company to deliver such notice, or any defect therein, or any failure of the Company to deliver such supplemental indenture, shall not in any way impair or affect the validity of any such supplemental indenture.
36
Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article IX or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and, subject to Section 601, shall be fully protected in relying upon, an Opinion of Counsel and Officer’s Certificate stating that the execution of such supplemental indenture is authorized or permitted by this Indenture, that such Supplemental Indenture is the legal, valid and binding obligation of the Company, enforceable in accordance with its terms and that all conditions precedent in this Indenture to the execution of such supplemental indenture, if any, have been complied with. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article IX, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article IX shall conform to the requirements of the Trust Indenture Act.
Section 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article IX may, and shall if required by the Company, bear a notation in form approved by the Company as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities of any series so modified as to conform, in the opinion of the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series.
ARTICLE X
COVENANTS
Section 1001. Payment of Principal, Premium, if any, and Interest.
The Company covenants and agrees for the benefit of each series of Securities that it will duly and punctually pay the principal of and premium, if any, and interest on the Securities of such series in accordance with the terms of the Securities and this Indenture. Principal and interest shall be considered paid on the date due if, on or before 11:00 a.m. (New York City time) on such date, the Trustee or the Paying Agent (or, if the Company or any Subsidiary is the Paying Agent, the segregated account or separate trust fund maintained by the Company or such Subsidiary pursuant to Section 1003) holds in accordance with this Indenture money sufficient to pay all principal and interest then due.
The Company shall pay interest on overdue principal at the rate specified therefor in the Securities, and it shall pay interest on overdue installments of interest at the same rate to the extent lawful as provided in Section 307.
Notwithstanding anything to the contrary contained in this Indenture, the Company or the Paying Agent may, to the extent it is required to do so by law, deduct or withhold income or other similar taxes imposed by the United States of America or other domestic or foreign taxing authorities from principal or interest payments hereunder.
Section 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of Securities an office or agency where Securities of such series may be presented or surrendered for payment, where Securities of such series may be surrendered for registration of transfer or exchange, where Securities may be surrendered for conversion, and where notices and demands to or upon the Company in respect of the Securities of such series and this Indenture may be served. The Company will give prompt written notice to the Trustee of the location, and any change in the location,
37
of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee. The Company hereby appoints the Trustee at its Corporate Trust Office as its agent to receive all such presentations, surrenders, notices and demands; provided, however, that no office of the Trustee shall not be deemed an office or agency for the purpose of service of legal process against the Company.
The Company may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in each Place of Payment for Securities of any series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.
With respect to any Global Security, and except as otherwise may be specified for such Global Security as contemplated by Section 301, the Corporate Trust Office of the Trustee shall be the Place of Payment where such Global Security may be presented or surrendered for payment or for registration of transfer or exchange, or where successor Securities may be delivered in exchange therefor; provided, however, that any such payment, presentation, surrender or delivery effected pursuant to the Applicable Procedures of the Depositary for such Global Security shall be deemed to have been effected at the Place of Payment for such Global Security in accordance with the provisions of this Indenture.
Section 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect to any series of Securities, it will, on or before each due date for the principal of or premium, if any, or interest on any of the Securities of such series, segregate and hold in trust for the benefit of the Holders of such Securities a sum sufficient to pay the principal and premium, if any, and interest so becoming due until such sums shall be paid to such Holders or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of Securities, it will, no later than 11:00 a.m. (New York City time) on each due date for the principal of or premium, if any, or interest on any Securities of such series, deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be held in trust for the Holders of such Securities entitled to the same, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section 1003, that such Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by such Paying Agent for the payment of principal of or interest on the Securities and shall notify the Trustee in writing of any default by the Company in making any such payment.
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money.
Subject to any applicable abandoned property law, any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of or premium, if any, or interest on any Security of any series and remaining unclaimed for two years after such principal, premium or interest has become due and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease.
38
Section 1004. Statement by Officers as to Default.
The Company shall deliver to the Trustee within 120 days after the end of each fiscal year of the Company ending after the date hereof an Officer’s Certificate signed by its principal executive officer, principal financial officer or principal accounting officer, stating whether or not, to the best knowledge of such Officer, the Company is in default in the performance and observance of any of the terms, provisions and conditions of this Indenture applicable to it (without regard to any period of grace or requirement of notice provided hereunder) and, if the Company shall be in default, specifying all such defaults and the nature and status thereof of which such Officer may have knowledge.
Section 1005. Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 301 for Securities of such series, the Company may, with respect to the Securities of any series, omit in any particular instance to comply with any term, provision or condition set forth in any covenant provided pursuant to Section 301(19), Section 901(1) or Section 901(8) for the benefit of the Holders of such series or in Article VIII, if before the time for such compliance the Holders of at least a majority in aggregate principal amount of the Outstanding Securities of such series shall, by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee in respect of any such term, provision or condition shall remain in full force and effect.
ARTICLE XI
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified as contemplated by Section 301 for such Securities) in accordance with this Article XI.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by a Board Resolution or an Officer’s Certificate or in another manner specified as contemplated by Section 301 for such Securities. In case of any redemption at the election of the Company of the Securities of any series (including any such redemption affecting only a single Security), the Company shall, at least 10 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the principal amount of Securities of such series to be redeemed and, if applicable, of the tenor of the Securities to be redeemed. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officer’s Certificate evidencing compliance with such restriction.
Section 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed (unless all the Securities of such series and of a specified tenor are to be redeemed or unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series not previously called for redemption, by, in the case of a Global Security, such method as shall be in accordance with the procedures of the Depositary and, in the case of a Security other than a Global Security, by lot and, in each case, which may provide for the selection for redemption of a portion of the principal amount of any Security of such series; provided that the unredeemed portion of the principal amount of any Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security. If less than all the Securities of such series and of a specified tenor are to be redeemed (unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected by the Trustee, from the Outstanding Securities of such series and specified tenor not previously called for redemption in accordance with the preceding sentence.
39
If any Security selected for partial redemption is converted in part before termination of the conversion right with respect to the portion of the Security so selected, the converted portion of such Security shall be deemed (so far as may be) to be the portion selected for redemption. Securities which have been converted during a selection of securities to be redeemed shall be treated by the Trustee as Outstanding for the purpose of such selection.
The Trustee shall promptly notify the Company in writing of the Securities selected for redemption as aforesaid and, in case of any Securities selected for partial redemption as aforesaid, the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with respect to any redemption affecting only a single Security, whether such Security is to be redeemed in whole or in part. In the case of any such redemption in part, the unredeemed portion of the principal amount of the Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed.
Section 1104. Notice of Redemption.
Notice of redemption shall be given to Holders not less than 10 nor more than 60 days prior to the Redemption Date (or within such period as otherwise specified as contemplated by Section 301 for Securities of a series), to each Holder of Securities to be redeemed, at such Holder’s address appearing in the Security Register.
All notices of redemption shall identify the Securities to be redeemed and shall state:
| (1) | the Redemption Date; |
| (2) | the Redemption Price (or the method of calculating such price); |
| (3) | if less than all the Outstanding Securities of any series consisting of more than a single Security are to be redeemed, the identification (and, in the case of partial redemption of any such Securities, the principal amounts) of the particular Securities to be redeemed and, if less than all the Outstanding Securities of any series consisting of a single Security are to be redeemed, the principal amount of the particular Security to be redeemed; |
| (4) | that on the Redemption Date the Redemption Price will become due and payable upon each such Security to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date; |
| (5) | the place or places where each such Security is to be surrendered for payment of the Redemption Price; |
| (6) | for any Securities that by their terms may be converted, the terms of conversion, the date on which the right to convert the Security to be redeemed will terminate and the place or places where such Securities may be surrendered for conversion; |
| (7) | that the redemption is for a sinking fund, if such is the case; |
| (8) | any conditions to the redemption; and |
40
| (9) | if applicable, the CUSIP numbers of the Securities of such series; provided, however, that no representation will be made as to the correctness or accuracy of the CUSIP number, or any similar number, if any, listed in such notice or printed on the Securities. |
Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company’s written request , by the Trustee in the name and at the expense of the Company; provided that the Company shall have delivered to the Trustee not later than two Business Days prior to the date the notice of redemption is to be sent (unless a shorter period shall be satisfactory to the Trustee), an Officer’s Certificate requesting that the Trustee give such notice of redemption, together with the notice of redemption to be given setting forth the information to be stated therein as provided in the preceding paragraph. The notice, if mailed in the manner herein provided, shall be conclusively presumed to have been given, whether or not the Holder receives such notice. In any case, failure to give such notice by mail or any defect in the notice to the Holder of any Security designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other Securities.
Section 1105. Deposit of Redemption Price.
By no later than 11:00 a.m. (New York City time) on any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 1003) an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date or the Securities of the series provide otherwise) accrued interest on, all the Securities which are to be redeemed on that date, other than Securities or portions of Securities called for redemption which are owned by the Company or a Subsidiary and have been delivered by the Company or such Subsidiary to the Trustee for cancellation. All money, if any, earned on funds held by the Paying Agent shall be remitted to the Company. In addition, the Paying Agent shall promptly, upon Company request, return to the Company any money deposited with the Paying Agent by the Company in excess of the amounts necessary to pay the Redemption Price of, and accrued interest, if any, on, all Securities to be redeemed.
If any Security called for redemption is converted, any money deposited with the Trustee or with any Paying Agent or so segregated and held in trust for the redemption of such Security shall (subject to any right of the Holder of such Security or any Predecessor Security to receive interest as provided in the last paragraph of Section 307 or in the terms of such Security) be paid to the Company upon Company Request or, if then held by the Company, shall be discharged from such trust.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest) such Securities shall cease to bear interest. Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Company at the Redemption Price, together, if applicable, with accrued interest to, but excluding, the Redemption Date; provided, however, that, unless otherwise specified as contemplated by Section 301, installments of interest whose Stated Maturity is on or prior to the Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 307; provided further that, unless otherwise specified as contemplated by Section 301, if the Redemption Date is after a Regular Record Date and on or prior to the Interest Payment Date, the accrued and unpaid interest shall be payable to the Holder of the redeemed Securities registered on the relevant Regular Record Date.
If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal and premium, if any, shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security.
41
Section 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or such Holder’s attorney duly authorized in writing), and the Company shall execute, and, upon Company Order, the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of the same series and of like tenor, of any authorized denomination as requested by such Holder, in principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered.
ARTICLE XII
[RESERVED]
ARTICLE XIII
DEFEASANCE AND COVENANT DEFEASANCE
Section 1301. Company’s Option to Effect Defeasance or Covenant Defeasance.
Unless otherwise provided as contemplated by Section 301, Sections 1302 and 1303 shall apply to all Securities and each series of Securities, denominated in U.S. dollars and bearing interest at a fixed rate, in accordance with any applicable requirements provided pursuant to Section 301 and upon compliance with the conditions set forth below in this Article XIII; and the Company may elect, at its option at any time, to have Sections 1302 and 1303 applied to any Securities or any series of Securities, designated pursuant to Section 301 as being defeasible pursuant to such Section 1302 or 1303, in accordance with any applicable requirements provided pursuant to Section 301 and upon compliance with the conditions set forth below in this Article XIII. Any such election shall be evidenced by a Board Resolution, Officer’s Certificate or in another manner specified as contemplated by Section 301 for such Securities.
Section 1302. Defeasance and Discharge.
Upon the Company’s exercise of its option, if any, to have this Section 1302 applied to any Securities or any series of Securities, or if this Section 1302 shall otherwise apply to any Securities or any series of Securities, the Company shall be deemed to have been discharged from its obligations with respect to such Securities as provided in this Section 1302 on and after the date the conditions set forth in Section 1304 are satisfied (hereinafter called “Defeasance”). For this purpose, such Defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by such Securities and to have satisfied all its other obligations under such Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at the request and expense of the Company, shall execute such instruments reasonably requested by the Company acknowledging the same), subject to the following which shall survive until otherwise terminated or discharged hereunder: (1) the rights of Holders of such Securities to receive, solely from the trust fund described in Section 1304 and as more fully set forth in such Section 1305, payments in respect of the principal of and premium, if any, and interest on such Securities when payments are due, (2) the Company’s obligations with respect to such Securities under Sections 304, 305, 306, 1002 and 1003, (3) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (4) this Article XIII. Subject to compliance with this Article XIII, the Company may exercise its option, if any, to have this Section 1302 applied to the Securities of any series notwithstanding the prior exercise of its option, if any, to have Section 1303 applied to such Securities.
Section 1303. Covenant Defeasance.
Upon the Company’s exercise of its option, if any, to have this Section 1303 applied to any Securities or any series of Securities, or if this Section 1303 shall otherwise apply to any Securities or any series of Securities, (1) the Company shall be released from its obligations under Section 801(3) and any covenants provided pursuant to Section 301(19), Section 901(1) or Section 901(8) for the benefit of the Holders of such Securities and (2) the occurrence of any event specified in Section 501(4) and Section 501(7) shall be deemed not to be or result in an Event of Default, in each case with respect to such Securities as provided in this Section 1303 on and after the date the conditions set forth in Section 1304 are satisfied (hereinafter called “Covenant Defeasance”). For this purpose, such Covenant Defeasance means that, with respect to such Securities, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such specified Section, whether directly or indirectly by reason of any reference elsewhere herein to any such Section or by reason of any reference in any such Section to any other provision herein or in any other document, but the remainder of this Indenture and such Securities shall be unaffected thereby.
42
Section 1304. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section 1302 or 1303 to any Securities or any series of Securities:
| (1) | The Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee which satisfies the requirements contemplated by Section 609 and agrees to comply with the provisions of this Article XIII applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefits of the Holders of such Securities, (A) money in an amount, or (B) U.S. Government Obligations which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide money in an amount, or (C) a combination thereof, in each case sufficient to pay and discharge, and which shall be applied by the Trustee (or any such other qualifying trustee) to pay and discharge, the principal of and premium, if any, and interest on such Securities on the respective Stated Maturities, in accordance with the terms of this Indenture and such Securities. As used herein, “U.S. Government Obligation” means (x) any security which is (i) a direct obligation of the United States of America for the payment of which the full faith and credit of the United States of America is pledged or (ii) an obligation of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case (i) or (ii), is not callable or redeemable at the option of the issuer thereof, and (y) any depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any U.S. Government Obligation which is specified in clause (x) above and held by such bank for the account of the holder of such depositary receipt, or with respect to any specific payment of principal of or interest on any U.S. Government Obligation which is so specified and held; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of principal or interest evidenced by such depositary receipt. |
| (2) | In the event of an election to have Section 1302 apply to any Securities or any series of Securities shall have delivered to the Trustee an Opinion of Counsel stating that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the date of this Indenture, there has been a change in the applicable Federal income tax law, in either case (A) or (B) to the effect that, and based thereon such opinion shall confirm that, the beneficial owners of such Securities will not recognize gain or loss for Federal income tax purposes as a result of the deposit, Defeasance and discharge to be effected with respect to such Securities and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit, Defeasance and discharge were not to occur. |
| (3) | In the event of an election to have Section 1303 apply to any Securities or any series of Securities, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the beneficial owners of such Securities will not recognize gain or loss for Federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to such Securities and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were not to occur. |
| (4) | The Company shall have delivered to the Trustee an Officer’s Certificate to the effect that neither such Securities nor any other Securities of the same series, if then listed on any securities exchange, will be delisted as a result of such deposit. |
43
| (5) | No Event of Default with respect to such Securities or any other Securities shall have occurred and be continuing at the time of such deposit or, insofar as Section 501(5) or Section 501(6) are concerned, at any time on or prior to the 90th day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until after such 90th day). |
| (6) | Such Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any other material agreement or instrument to which the Company is a party or by which it is bound. |
| (7) | The Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent with respect to such Defeasance or Covenant Defeasance have been complied with (in each case, subject to the satisfaction of the condition in clause (5)). |
Before or after a deposit, the Company may make arrangements satisfactory to the Trustee for the redemption of Securities at a future date in accordance with Article XI.
Section 1305. Deposited Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee or other qualifying trustee (solely for purposes of this Section 1305 and Section 1306, the Trustee and any such other trustee are referred to collectively as the “Trustee”) pursuant to Section 1304 in respect of any Securities shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any such Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders of such Securities, of all sums due and to become due thereon in respect of principal and premium, if any, and interest, but money so held in trust need not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to Section 1304 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of Outstanding Securities; provided that the Trustee shall be entitled to charge any such tax, fee or other charge to such Holder’s account.
Anything in this Article XIII to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or U.S. Government Obligations held by it as provided in Section 1304 with respect to any Securities which are in excess of the amount thereof which would then be required to be deposited to effect the Defeasance or Covenant Defeasance, as the case may be, with respect to such Securities.
Section 1306. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in accordance with this Article XIII with respect to any Securities by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations under this Indenture and such Securities from which the Company has been discharged or released pursuant to Section 1302 or 1303 shall be revived and reinstated as though no deposit had occurred pursuant to this Article XIII with respect to such Securities, until such time as the Trustee or Paying Agent is permitted to apply all money held in trust pursuant to Section 1305 with respect to such Securities in accordance with this Article XIII; provided, however, that (a) if the Company makes any payment of principal of or premium, if any, or interest on any such Security following such reinstatement of its obligations, the Company shall be subrogated to the rights, if any, of the Holders of such Securities to receive such payment from the money so held in trust and (b) unless otherwise required by any legal proceeding or any order or judgment of any court or governmental authority, the Trustee or Paying Agent shall return all such money and U.S. Government Obligations to the Company promptly after receiving a written request therefor at any time, if such reinstatement of the obligations of the Company has occurred and continues to be in effect.
* * *
44
This Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. This Indenture may be executed in multiple counterparts which, when taken together, shall constitute one instrument. The exchange of copies of this Indenture and of signature pages by facsimile, .pdf or other electronic transmissions shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile, .pdf or other electronic methods shall be deemed to be their original signatures for all purposes. Unless otherwise provided herein, the words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Indenture or any document to be signed in connection with this Indenture (including amendments, waivers, consents and other modifications) shall be deemed to include electronic signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, to the fullest extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, and the parties hereto consent to conduct the transactions contemplated hereunder by electronic means; provided that, notwithstanding anything herein to the contrary, the Trustee is under no obligation to agree to accept electronic signatures in any form or in any format unless expressly agreed to by the Trustee pursuant to procedures approved by the Trustee.
[Signature page follows]
45
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed and attested, all as of the day and year first above written.
| PEABODY ENERGY CORPORATION | ||
| By: | ||
| Name: | ||
| Title: | ||
| WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee | ||
| By: | ||
| Name: | ||
| Title: | ||
Exhibit 5.1
[Letterhead of Womble Bond Dickinson (US) LLP]
March 26, 2021
Peabody Energy Corporation
701 Market Street
St. Louis, Missouri 63101-1826
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as counsel to Peabody Energy Corporation, a Delaware corporation (the “Company”), and the guarantors listed on Schedule I hereto (individually, a “Guarantor” and collectively, the “Guarantors”) in connection with the preparation of the Company’s above-referenced registration statement on Form S-3 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “1933 Act”), filed by the Company with the Securities and Exchange Commission (the “Commission”). The Registration Statement relates to the proposed offer and sale by the Company of the following securities (the “Securities”): (a) debt securities (the “Debt Securities”); (b) shares of common stock, $0.01 par value per share (the “Common Stock”); (c) one or more series of shares of preferred stock, $0.01 par value per share (the “Preferred Stock”); (d) warrants (the “Warrants”); (e) units (the “Units”); and (f) guarantees of the Guarantors to be issued in connection with the Debt Securities (the “Guarantees”). The Registration Statement provides that specific terms of the Securities will be provided in supplements to the prospectus contained in the Registration Statement. The Securities may be offered separately or together with other Securities, in separate series, in amounts, at prices and on terms to be set forth in the prospectus and one or more supplements to the prospectus (collectively, the “Prospectus”) constituting a part of the Registration Statement, and in the Registration Statement.
The Debt Securities and the Guarantees will be issued pursuant to one or more indentures between the Company and existing and/or yet to be named trustees (collectively, the “Indentures”), the Warrants will be issued in one or more series pursuant to one or more warrant agreements (each, a “Warrant Agreement”) between the Company and the warrant agent party thereto, and the Units will be issued pursuant to one or more unit agreements (each, a “Unit Agreement”) between the Company and the unit agent party thereto.
This opinion is being furnished in accordance with the requirements of Item 16 of Form S-3 and Item 601(b)(5) of Regulation S-K under the 1933 Act, and no opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement, the prospectus or any prospectus supplement other than as expressly stated herein with respect to the issuance of the Securities.
As counsel to the Company and the Guarantors, we have examined originals or copies, certified or otherwise identified to our satisfaction, of the Company’s certificate of incorporation and bylaws and each Guarantor’s organizational documents, each as amended to date, and minutes and records of the corporate proceedings of the Company and the Guarantors relating to the filing of the Registration Statement and the issuance of the Securities, as provided to us by the Company and the Guarantors, certificates of public officials and of representatives of the Company and the Guarantors, and statutes and other instruments and documents, as a basis for the opinions hereinafter expressed. In rendering this opinion, we have relied upon certificates of public officials and representatives of the Company and the Guarantors with respect to the accuracy of the factual matters contained in such certificates.
In connection with such examination, we have assumed (a) the genuineness of all signatures and the legal capacity of all signatories; (b) the authenticity of all documents submitted to us as originals and the conformity to original documents of all documents submitted to us as certified or photostatic copies; (c) that each of the Debt Securities, the Indenture, the Warrant Agreement, and the Unit Agreement (each as such terms are defined in this
opinion letter) constitutes the enforceable obligation of the parties thereto other than the Company and the Guarantors; (d) that the Company will have sufficient authorized capital stock to effect the issuance of any of the Common Stock or Preferred Stock at the time of issuance; (e) the proper issuance and accuracy of certificates of public officials and representatives of the Company and the Guarantors; and (f) that the Company will receive consideration for the issuance of the Common Stock and the Preferred Stock in each case that is at least equal to the amount of consideration specified in the resolutions of the Board of Directors of the Company, or a committee thereof, relating to the sale of such Common Stock or Preferred Stock.
Based on and subject to the foregoing, and subject to completion of all corporate action required to be taken by the Company and the Guarantors, as applicable, to authorize each proposed issuance of Securities (including the due reservation of any shares of Common Stock or Preferred Stock upon conversion or exchange of any other Securities), and having regard for such legal considerations as we deem relevant, it is our opinion that:
1. With respect to Debt Securities to be issued under one or more indentures (each, an “Indenture”), when (a) the Indenture and the applicable supplement thereto, if any, has been duly authorized and validly executed and delivered by the Company and the trustee thereunder and (b) the Debt Securities have been executed, issued, delivered and authenticated in accordance with the terms of the Indenture and the applicable definitive purchase, underwriting or similar agreement against the receipt of requisite consideration therefor provided for therein, the Debt Securities will constitute legal, valid and binding obligations of the Company.
2. With respect to Common Stock, when the shares of Common Stock have been issued and delivered in accordance with the applicable definitive purchase, underwriting or similar agreement against the receipt of requisite consideration therefor provided for therein, such shares of Common Stock will be validly issued, fully paid and nonassessable.
3. With respect to Preferred Stock, when (a) the applicable Certificate of Designations for the Preferred Stock to be issued has been authorized by the Company’s Board of Directors, executed and duly filed with the Office of the Secretary of State of Delaware and (b) the shares of Preferred Stock have been issued and delivered in accordance with the applicable definitive purchase, underwriting or similar agreement against the receipt of requisite consideration therefor provided for therein, the shares of Preferred Stock will be validly issued, fully paid and nonassessable.
4. With respect to Common Stock or Preferred Stock to be issued upon conversion of the Debt Securities or Preferred Stock, when (a) if applicable, the Certificate of Designations for the Preferred Stock to be issued has been authorized by the Company’s Board of Directors, executed and duly filed with the Office of the Secretary of State of the State of Delaware and (b) such Common Stock or Preferred Stock, as the case may be, has been issued and delivered in accordance with the terms of the applicable Debt Securities or Preferred Stock, as the case may be, such shares of Common Stock or Preferred Stock will be validly issued, fully paid and nonassessable.
5. With respect to the Warrants, when (a) a Warrant Agreement has been duly authorized and validly executed and delivered by the Company and each party thereto, (b) the terms of the Warrants have been established in accordance with the Warrant Agreement and (c) the Warrants have been executed and delivered in accordance with the related Warrant Agreement and the applicable definitive purchase, underwriting or similar agreement against the receipt of requisite consideration therefor provided therein, the Warrants will be legal, valid and binding obligations of the Company.
6. With respect to the Units, when (a) a Unit Agreement has been duly authorized and validly executed and delivered by the Company and each party thereto, (b) the terms of the Units have been established in accordance with the Unit Agreement, (c) the Units and have been executed and delivered in accordance with the related Unit Agreement and the applicable definitive purchase, underwriting or similar agreement against the receipt of requisite consideration therefor provided therein, the Units will be legal, valid and binding obligations of the Company.
7. With respect to the Guarantees, when (a) the Guarantees have been duly authorized and validly executed and delivered by the Guarantors and (b) the debt instruments underlying such Guarantees have been executed, issued, delivered and authenticated in accordance with the terms of the applicable indenture and the applicable definitive purchase, underwriting or similar agreement against the receipt of requisite consideration therefor provided for therein, the Guarantees will constitute legal, valid and binding obligations of each of the Guarantors.
The opinions set forth in paragraphs 1 and 5 through 7 above are each subject to (a) the effect of any bankruptcy, insolvency, reorganization, moratorium, arrangement or similar laws affecting the rights and remedies of creditors’ generally, including the effect of statutory or other laws regarding fraudulent transfers or preferential transfers, and (b) general principles of equity, including concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance, injunctive relief or other equitable remedies regardless of whether enforceability is considered in a proceeding in equity or at law. We express no opinion regarding the effectiveness of (i) any waiver of stay, extension or usury laws or of unknown future rights; or (ii) provisions relating to indemnification, exculpation or contribution, to the extent such provisions may be held unenforceable as contrary to federal or state securities laws.
For purposes of the opinions expressed herein, as to all matters of law of the State of Indiana, we have relied solely on the opinion of Dentons Bingham Greenebaum LLP, Evansville, Indiana, dated today and addressed to you, and we have made no independent examination of the laws of that State.
This opinion is limited to the laws of the State of New York (excluding the securities laws and blue sky laws of the State of New York), the Delaware General Corporation Law, the Delaware Limited Liability Companies Act, the Delaware Revised Uniform Partnership Act, and the Illinois Business Corporation Act of 1983, in each case as currently in effect, and, to the extent set forth herein, the law of the State of Indiana, and we express no opinion on the law of any other jurisdiction, including federal laws and rules and regulations relating thereto.
This opinion is rendered as of the date hereof, and we undertake no (and hereby disclaim any) obligation to advise you of any changes in applicable law or any other matters that may come to our attention after the date hereof.
This opinion is furnished to you in connection with the filing of the Registration Statement and is not to be used, circulated, quoted or otherwise relied upon for any other purpose except that purchasers of the Securities offered pursuant to the Registration Statement may rely on this opinion to the same extent as if it were addressed to them.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement and to the reference to the name of our firm under the heading “Legal Matters” in the Registration Statement. In giving this consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the 1933 Act or the rules and regulations of the Commission thereunder.
| Very truly yours, |
| /s/ Womble Bond Dickinson (US) LLP |
Schedule I
| Name of Subsidiary |
State of Incorporation or | |
| American Land Development, LLC | Delaware | |
| American Land Holdings of Colorado, LLC | Delaware | |
| American Land Holdings of Illinois, LLC | Delaware | |
| American Land Holdings of Indiana, LLC | Delaware | |
| American Land Holdings of Kentucky, LLC | Delaware | |
| Big Ridge, Inc. | Illinois | |
| Big Sky Coal Company | Delaware | |
| BTU Western Resources, Inc. | Delaware | |
| COALSALES II, LLC | Delaware | |
| Conservancy Resources, LLC | Delaware | |
| El Segundo Coal Company, LLC | Delaware | |
| Hayden Gulch Terminal, LLC | Delaware | |
| Hillside Recreational Lands, LLC | Delaware | |
| Kayenta Mobile Home Park, Inc. | Delaware | |
| Kentucky United Coal, LLC | Indiana | |
| Moffat County Mining, LLC | Delaware | |
| New Mexico Coal Resources, LLC | Delaware | |
| NGS Acquisition Corp., LLC | Delaware | |
| Peabody America, LLC | Delaware | |
| Peabody Arclar Mining, LLC | Indiana | |
| Peabody Asset Holdings, LLC | Delaware | |
| Peabody Bear Run Mining, LLC | Delaware | |
| Peabody Bear Run Services, LLC | Delaware | |
| Peabody Caballo Mining, LLC | Delaware | |
| Peabody Cardinal Gasification, LLC | Delaware | |
| Peabody China, LLC | Delaware | |
| Peabody COALSALES, LLC | Delaware | |
| Peabody COALTRADE, LLC | Delaware | |
| Peabody Colorado Operations, LLC | Delaware | |
| Peabody Colorado Services, LLC | Delaware | |
| Peabody Coulterville Mining, LLC | Delaware | |
| Peabody Development Company, LLC | Delaware | |
| Peabody Electricity, LLC | Delaware | |
| Peabody Employment Services, LLC | Delaware | |
| Peabody Gateway North Mining, LLC | Delaware | |
| Peabody Gateway Services, LLC | Delaware | |
| Peabody Global Funding, LLC | Delaware | |
| Peabody Global Holdings, LLC | Delaware | |
| Peabody Holding Company, LLC | Delaware | |
| Peabody IC Funding Corp. | Delaware | |
| Peabody Illinois Services, LLC | Delaware | |
| Peabody Indiana Services, LLC | Delaware | |
| Peabody International Holdings, LLC | Delaware | |
| Peabody International Investments, Inc. | Delaware | |
| Peabody International Services, Inc. | Delaware | |
| Peabody Investments Corp. | Delaware | |
| Peabody Midwest Management Services, LLC | Delaware | |
| Peabody Midwest Mining, LLC | Indiana | |
| Peabody Midwest Operations, LLC | Delaware | |
| Peabody Midwest Services, LLC | Delaware | |
| Peabody Mongolia, LLC | Delaware |
| Name of Subsidiary |
State of Incorporation or | |
| Peabody Natural Gas, LLC | Delaware | |
| Peabody Natural Resources Company | Delaware | |
| Peabody New Mexico Services, LLC | Delaware | |
| Peabody Operations Holding, LLC | Delaware | |
| Peabody Powder River Mining, LLC | Delaware | |
| Peabody Powder River Operations, LLC | Delaware | |
| Peabody Powder River Services, LLC | Delaware | |
| Peabody Rocky Mountain Management Services, LLC | Delaware | |
| Peabody Rocky Mountain Services, LLC | Delaware | |
| Peabody Sage Creek Mining, LLC | Delaware | |
| Peabody School Creek Mining, LLC | Delaware | |
| Peabody Services Holdings, LLC | Delaware | |
| Peabody Southeast Mining, LLC | Delaware | |
| Peabody Twentymile Mining, LLC | Delaware | |
| Peabody Venezuela Coal Corp. | Delaware | |
| Peabody Venture Fund, LLC | Delaware | |
| Peabody-Waterside Development, L.L.C. | Delaware | |
| Peabody Western Coal Company | Delaware | |
| Peabody Wild Boar Mining, LLC | Delaware | |
| Peabody Wild Boar Services, LLC | Delaware | |
| Peabody Williams Fork Mining, LLC | Delaware | |
| Peabody Wyoming Services, LLC | Delaware | |
| PEC Equipment Company, LLC | Delaware | |
| Sage Creek Holdings, LLC | Delaware | |
| Sage Creek Land & Reserves, LLC | Delaware | |
| Seneca Coal Company, LLC | Delaware | |
| Seneca Property, LLC | Delaware | |
| Shoshone Coal Corporation | Delaware | |
| Twentymile Coal, LLC | Delaware | |
| United Minerals Company LLC | Indiana |
Exhibit 5.2
[Dentons Bingham Greenebaum LLP Letterhead]
March 26, 2021
Peabody Energy Corporation
701 Market Street
St. Louis, Missouri 63103
RE: Shelf Registration Statement
Ladies and Gentlemen:
We have acted as special Indiana counsel to Kentucky United Coal, LLC, Peabody Arclar Mining, LLC, Peabody Midwest Mining, LLC and United Minerals Company, LLC, each an Indiana limited liability company (collectively, the “Indiana Guarantors”), in connection with the Form S-3 Registration Statement dated March 26, 2021 (the “Registration Statement”) filed by Peabody Energy Corporation (the “Company”) and the guarantors named therein, including the Indiana Guarantors (collectively, the “Guarantors”), with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, relating to (i) debt securities, which may be either senior or subordinated (the “Debt Securities”); (ii) shares of common stock of the Company, par value $0.01 per share (the “Common Stock”); (iii) shares of preferred stock of the Company, par value $0.01 per share (the “Preferred Stock”); (iv) warrants to purchase Debt Securities (the “Debt Security Warrants”), Preferred Stock (the “Preferred Stock Warrants”) or Common Stock (the “Common Stock Warrants”) (collectively, the “Warrants”); (v) units of the Company, consisting of any combination of two or more of the securities being registered pursuant to the Registration Statement (the “Units”); (vi) guarantees of the Guarantors to be issued in connection with the Debt Securities, Warrants or Units (the “Guarantees”); and (vii) Debt Securities and Guarantees, Preferred Stock and Common Stock that may be issued upon exercise of Warrants. The Debt Securities, the Guarantees, the Preferred Stock, the Common Stock, the Warrants and the Units are hereinafter referred to collectively as the “Securities.” The Securities may be issued and sold or delivered from time to time as set forth in the Registration Statement, any amendment thereto, the prospectus contained therein (the “Prospectus”) and supplements to the Prospectus pursuant to Rule 415 under the Securities Act for an aggregate initial offering price not to exceed $2,000,000,000, subject to there being a sufficient number of shares of Common Stock and Preferred Stock authorized under the Company’s Fourth Amended and Restated Certificate of Incorporation that have not been issued or reserved for issuance.
The Debt Securities and the Guarantees thereof will be issued under an Indenture (the “Indenture”) among the Company, the Guarantors and Wilmington Trust, National Association, as Trustee.
The Debt Security Warrants will be issued under a Debt Security Warrant Agreement (the “Debt Security Warrant Agreement”) among the Company, the Guarantors, as applicable, a debt security warrant agent to be named therein and the Trustee. The Common Stock Warrants will be issued under a Common Stock Warrant Agreement (the “Common Stock Warrant Agreement”) between the Company and a common stock warrant agent to be named therein. The Preferred Stock Warrants will be issued under a Preferred Stock Warrant Agreement (the “Preferred Stock Warrant Agreement”, and collectively with the Debt Security Warranty Agreement and the Common Stock Warrant Agreement, the “Warrant Agreements”) between the Company and a preferred stock warrant agent to be named therein.
The Units will be issued pursuant to a unit agreement (the “Unit Agreement”) among the Company, the Guarantors, as applicable, and a unit agent to be named therein (the “Unit Agent”).
In the capacity described above, we have reviewed the Registration Statement and the form of Indenture, which has been filed as an exhibit to the Registration Statement, and have considered such matters of law and of fact as we have deemed appropriate as a basis for the Opinions (as hereinafter defined) expressed herein, including examination of originals or copies, certified or otherwise identified to our satisfaction, of: the articles of organization and limited liability company agreement for each of the Indiana Guarantors, and certificates of existence obtained from the Indiana Secretary of State for each of the Indiana Guarantors (collectively, the “Certificates of Existence”).
Peabody Energy Corporation
March 26, 2021
Page 2
In such examination, we have assumed: the genuineness of all signatures; the legal capacity of natural persons; the authenticity, accuracy and completeness of all documents and records submitted to us as originals; the conformity to the original documents and records of all documents and records submitted to us as facsimile, notarial, pdf, certified or photostatic copies; and the authenticity of the originals of such latter documents and records. We have also assumed that (1) at the time of execution, countersignature, issuance and delivery of any Debt Securities, the Indenture will be the valid and legally binding obligation of the Trustee, the Company and the Guarantors at the time of issuance of the related Guarantees; (2) at the time of execution, countersignature, issuance and delivery of any Warrants, the related Warrant Agreement will be the valid and legally binding obligation of each party thereto at the time of issuance of the Guarantees; and (3) at the time of execution, issuance and delivery of any Units, the Unit Agreement will be the valid and legally binding obligation of each party thereto at the time of issuance of any related Guarantees. As to all questions of fact material to the Opinions expressed herein, we have assumed, without independent investigation, the accuracy of the factual matters addressed by, and accordingly have relied upon, certificates or comparable documents of public officials and of officers and representatives of the Company and the Indiana Guarantors, all notwithstanding any knowledge or materiality qualification contained therein, and we express no opinion with respect to the subject matter or accuracy of the assumptions or items upon which we have relied.
The Opinions expressed herein are limited to the laws of the State of Indiana, including the Indiana Business Flexibility Act (IC 23-18 et seq.), in each case, in force and effect on the date hereof. We express no opinion as to whether the laws of any particular jurisdiction apply, and no opinion to the extent that the laws of any jurisdiction other than those identified above are applicable to the subject matter hereof. The term “laws” as used in this opinion letter means the statutes of the relevant jurisdiction that are published, accessible and generally available to lawyers practicing in such jurisdiction and that such a lawyer, using customary professional diligence, would reasonably recognize as generally applicable to general business organizations that are not engaged in regulated business activities, except to the extent that the context in which such term is used limits or makes more specific such meaning.
We have examined copies of the Registration Statement and the form of Indenture furnished to us by the Company and the Indiana Guarantors for the sole purpose of rendering the Opinions. The limitations inherent in the role of special local counsel are such that we cannot and have not independently verified and are not passing upon, and do not assume any responsibility for, the accuracy, completeness or fairness of the information included in the Registration Statement or the Prospectus and, except for the Opinions contained herein, we have not participated in the negotiation, drafting or preparation of any material in connection with the filing by the Company and the Guarantors with the Commission of the Registration Statement with respect to the registration of the Securities and assume no responsibility for the contents of any such material.
The only opinions rendered by us consist of the opinions set forth in numbered paragraphs “1” through “5” below following the phrase “it is our Opinion that” (each, our “Opinion,” and collectively, our “Opinions”), and no opinion is implied or to be inferred beyond matters so expressly stated. Additionally, our Opinions are based upon and subject to the assumptions, qualifications, limitations and exceptions set forth in this opinion letter.
Our Opinion in paragraph 1 is based solely upon, and speak as of the date of the Certificates of Existence, all of which are attached hereto as Exhibit A, and is limited to the meaning ascribed to the Certificates of Existence.
Peabody Energy Corporation
March 26, 2021
Page 3
Based on the foregoing, and subject to the assumptions, qualifications, limitations and exceptions stated herein, it is our Opinion that:
| 1. | Each of the Indiana Guarantors is as a limited liability company organized and validly existing under the laws of the State of Indiana. |
| 2. | Each of the Indiana Guarantors has the requisite limited liability company power and authority to guarantee the Debt Securities. |
| 3. | The Guarantees to be issued by each of the Indiana Guarantors in accordance with the Indentures will not violate any provision of the organizational documents that we have reviewed of the Indiana Guarantors or the applicable laws of the State of Indiana as in effect on the date hereof. |
| 4. | No governmental approval by any governmental authority of the State of Indiana is required to authorize, or is required for, the issuance by the Indiana Guarantors of their respective Guarantees. |
| 5. | With respect to the Guarantees to be issued by each of the Indiana Guarantors in connection with the Debt Securities, assuming (a) the taking of all necessary action by the members of each of the Indiana Guarantors to approve the issuance and terms of the Guarantees to be issued by the Indiana Guarantors and related matters by the board of directors of the member(s) of each of the Indiana Guarantors, a duly constituted and acting committee of such board or duly authorized officers or managers of each Indiana Guarantor, (b) the due execution, authentication, issuance and delivery of the Debt Securities underlying the Guarantees, upon the payment of consideration therefor provided for in the applicable definitive purchase agreement, underwriting or similar agreement approved by such board, committee or authorized officers and otherwise in accordance with the provisions of the applicable Indenture and such agreement all in accordance with the terms of the respective Indentures, and (c) all applicable provisions of “blue sky” laws will have been complied with, the Guarantees in connection with the Debt Securities to which the Indiana Guarantors will be parties will be validly issued. However, we express no opinion with respect to whether any Indiana Guarantor may validly guarantee or otherwise become liable for indebtedness incurred by the Company except to the extent such Indiana Guarantor may be determined to have benefited from the incurrence of such indebtedness by the Company sufficiently that such undertaking by such Indiana Guarantor is necessary or convenient to the conduct, promotion or attainment of business of such Indiana Guarantor. |
The Opinions expressed herein are provided as legal opinions only and not as guaranties or warranties of the matters discussed herein and are given as of the date hereof, and we expressly decline any undertaking to revise or update any of the Opinions subsequent to the date hereof or to advise you of any change, matter or other development arising subsequent to the date hereof that would cause us to modify our Opinions, in whole or in part.
This opinion letter is provided to you solely for your benefit in connection with the filing of the Registration Statement and may not be used for any other purpose by you, or disclosed to, or relied upon or used for any other purpose by, any other person, without our prior written consent. Notwithstanding the foregoing, subject to the qualifications, limitations, exceptions, restrictions and assumptions set forth herein, Womble Bond Dickinson (US) LLP may rely on this opinion letter as if it were an addressee hereof on this date for the sole purpose of rendering its opinion letter to the Company, as filed with the Commission as Exhibit 5.1 to the Registration Statement.
Peabody Energy Corporation
March 26, 2021
Page 4
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference made to us therein. In giving this consent, we do not thereby admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder.
| Very truly yours, | ||
| DENTONS BINGHAM GREENEBAUM LLP
/s/ DENTONS BINGHAM GREENEBAUM LLP | ||
EXHIBIT A
CERTIFICATES OF EXISTENCE
Attached hereto.
Exhibit 23.3
Consent of Independent Registered Public Accounting Firm
We consent to the reference to our firm under the caption “Experts” in this Registration Statement and related Prospectus of Peabody Energy Corporation for the registration of Debt Securities, Common Stock, Preferred Stock, Warrants, Units, and Guarantees of Debt Securities and to the incorporation by reference therein of our reports dated February 23, 2021, with respect to the consolidated financial statements and schedule of Peabody Energy Corporation and the effectiveness of internal control over financial reporting of Peabody Energy Corporation, included in its Annual Report (Form 10-K) for the year ended December 31, 2020, filed with the Securities and Exchange Commission.
/s/ Ernst & Young, LLP
St. Louis, Missouri
March 26, 2021
Exhibit 25.1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
| ☐ | Check if an Application to Determine Eligibility of a Trustee Pursuant to Section 305(b)(2) |
WILMINGTON TRUST, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
16-1486454
(I.R.S. employer identification no.)
1100 North Market Street
Wilmington, DE 19890-0001
(Address of principal executive offices)
Shaune Sullivan
Vice President
1100 North Market Street
Wilmington, Delaware 19890-0001
(302) 636-6522
(Name, address and telephone number of agent for service)
Peabody Energy Corporation1
(Exact name of obligor as specified in its charter)
| Delaware | 13-4004153 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
701 Market Street
St. Louis, Missouri 63101-1826
(Address of principal executive offices, including zip code)
Debt Securities
(Title of the indenture securities)
| 1 | See Table of Additional Obligors |
TABLE OF ADDITIONAL OBLIGORS
| Exact Name of Obligor as Specified in its Charter |
State or Other Jurisdiction of Incorporation or Organization |
I.R.S. Employer Identification Number |
Address, Including Zip Code, and Telephone Number, Including Area Code, of Obligor’s Principal Executive Offices | |||
| American Land Development, LLC | Delaware | 20-3405570 | 701 Market Street Suite 975 St. Louis, MO 63101 (314) 342-3400 | |||
| American Land Holdings of Colorado, LLC | Delaware | 26-3730572 | 701 Market Street Suite 809 St. Louis, MO 63101 (314) 342-3400 | |||
| American Land Holdings of Illinois, LLC | Delaware | 30-0440127 | 701 Market Street Suite 974 St. Louis, MO 63101 (314) 342-3400 | |||
| American Land Holdings of Indiana, LLC | Delaware | 20-2514299 | 701 Market Street Suite 737 St. Louis, MO 63101 (314) 342-3400 | |||
| American Land Holdings of Kentucky, LLC | Delaware | 20-0766113 | 701 Market Street Suite 719 St. Louis, MO 63101 (314) 342-3400 | |||
| Big Ridge, Inc. | Illinois | 37-1126950 | 420 Long Lane Road Equality, IL 62946 (618) 273-4314 | |||
| Big Sky Coal Company | Delaware | 81-0476071 | 701 Market Street Suite 763 St. Louis, MO 63101 (314) 342-3400 | |||
| BTU Western Resources, Inc. | Delaware | 20-1019486 | 701 Market Street Suite 735 St. Louis, MO 63101 (314) 342-3400 | |||
| COALSALES II, LLC | Delaware | 43-1610419 | 701 Market Street Suite 830 St. Louis, MO 63101 (314) 342-3400 | |||
| Conservancy Resources, LLC | Delaware | 20-5744701 | 701 Market Street Suite 755 St. Louis, MO 63101 (314) 342-3400 | |||
| El Segundo Coal Company, LLC | Delaware | 20-8162824 | 701 Market Street Suite 768 St. Louis, MO 63101 (314) 342-3400 | |||
| Hayden Gulch Terminal, LLC | Delaware | 86-0719481 | 701 Market Street Suite 714 St. Louis, MO 63101 (314) 342-3400 | |||
| Exact Name of Obligor as Specified in its Charter |
State or Other Jurisdiction of Incorporation or Organization |
I.R.S. Employer Identification Number |
Address, Including Zip Code, and Telephone Number, Including Area Code, of Obligor’s Principal Executive Offices | |||
| Hillside Recreational Lands, LLC | Delaware | 32-0214135 | 701 Market Street Suite 797 St. Louis, MO 63101 (314) 342-3400 | |||
| Kayenta Mobile Home Park, Inc. | Delaware | 86-0773596 | P.O. Box 605 Kayenta, AZ 86033 (928) 677-3201 | |||
| Kentucky United Coal, LLC | Indiana | 35-2088769 | 701 Market Street Suite 733 St. Louis, MO 63101 (314) 342-3400 | |||
| Moffat County Mining, LLC | Delaware | 74-1869420 | 701 Market Street Suite 733 St. Louis, MO 63101 (314) 342-3400 | |||
| New Mexico Coal Resources, LLC | Delaware | 20-3405643 | 701 Market Street Suite 804 St. Louis, MO 63101 (314) 342-3400 | |||
| NGS Acquisition Corp., LLC | Delaware | 35-2618206 | 701 Market Street Suite 733 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody America, LLC | Delaware | 93-1116066 | 701 Market Street Suite 720 St. Louis, MO 63101-1826 (314) 342-3400 | |||
| Peabody Arclar Mining, LLC | Indiana | 31-1566354 | 420 Long Lane Road Equality, IL 62934 (618) 273-4314 | |||
| Peabody Asset Holdings, LLC | Delaware | 20-3367333 | 701 Market Street Suite 733 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Bear Run Mining, LLC | Delaware | 26-3582291 | 701 Market Street Suite 802 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Bear Run Services, LLC | Delaware | 26-3725923 | 701 Market Street Suite 820 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Caballo Mining, LLC | Delaware | 83-0309633 | 701 Market Street Suite 711 St. Louis, MO 63101 (314) 342-3400 | |||
| Exact Name of Obligor as Specified in its Charter |
State or Other Jurisdiction of Incorporation or Organization |
I.R.S. Employer Identification Number |
Address, Including Zip Code, and Telephone Number, Including Area Code, of Obligor’s Principal Executive Offices | |||
| Peabody Cardinal Gasification, LLC | Delaware | 20-5047955 | 701 Market Street Suite 931 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody China, LLC | Delaware | 43-1898525 | 701 Market Street Suite 931 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody COALSALES, LLC | Delaware | 20-1759740 | 701 Market Street Suite 831 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody COALTRADE, LLC | Delaware | 43-1666743 | 701 Market Street Suite 835 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Colorado Operations, LLC | Delaware | 20-2561644 | 701 Market Street Suite 832 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Colorado Services, LLC | Delaware | 26-3723774 | 701 Market Street Suite 813 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Coulterville Mining, LLC | Delaware | 20-0217834 | 701 Market Street Suite 723 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Development Company, LLC | Delaware | 43-1265557 | 701 Market Street Suite 970 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Electricity, LLC | Delaware | 20-3405744 | 701 Market Street Suite 784 Louis, MO 63101 (314) 342-3400 | |||
| Peabody Employment Services, LLC | Delaware | 26-3730348 | 701 Market Street Suite 808 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Gateway North Mining, LLC | Delaware | 27-2294407 | 701 Market Street Suite 827 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Gateway Services, LLC | Delaware | 26-3724075 | 701 Market Street Suite 817 St. Louis, MO 63101 (314) 342-3400 | |||
| Exact Name of Obligor as Specified in its Charter |
State or Other Jurisdiction of Incorporation or Organization |
I.R.S. Employer Identification Number |
Address, Including Zip Code, and Telephone Number, Including Area Code, of Obligor’s Principal Executive Offices | |||
| Peabody Global Funding, LLC | Delaware | 37-1748000 | 701 Market Street Suite 817 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Global Holdings, LLC | Delaware | 20-5543587 | 701 Market Street Suite 817 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Holding Company, LLC | Delaware | 74-2666822 | 701 Market Street Suite 741 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody IC Funding Corp. | Delaware | 46-2326991 | 701 Market Street Suite 811 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Illinois Services, LLC | Delaware | 26-3722638 | 701 Market Street Suite 811 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Indiana Services, LLC | Delaware | 26-3724339 | 701 Market Street Suite 818 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody International Holdings, LLC | Delaware | 36-4861089 | 701 Market Street Suite 818 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody International Investments, Inc. | Delaware | 26-1361182 | 701 Market Street Suite 703 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody International Services, Inc. | Delaware | 20-8340434 | 701 Market Street Suite 783 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Investments Corp. | Delaware | 20-0480084 | 701 Market Street Suite 707 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Midwest Management Services, LLC | Delaware | 26-3726045 | 701 Market Street Suite 816 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Midwest Mining, LLC | Indiana | 35-1799736 | 7100 Eagle Crest Blvd Evansville, IN 47715 (812) 424-9000 | |||
| Peabody Midwest Operations, LLC | Delaware | 20-3405619 | 701 Market Street Suite 744 St. Louis, MO 63101 (314) 342-3400 | |||
| Exact Name of Obligor as Specified in its Charter |
State or Other Jurisdiction of Incorporation or Organization |
I.R.S. Employer Identification Number |
Address, Including Zip Code, and Telephone Number, Including Area Code, of Obligor’s Principal Executive Offices | |||
| Peabody Midwest Services, LLC | Delaware | 26-3722194 | 701 Market Street Suite 810 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Mongolia, LLC | Delaware | 20-8714315 | 701 Market Street Suite 740 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Natural Gas, LLC | Delaware | 43-1890836 | 701 Market Street Suite 740 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Natural Resources Company | Delaware | 51-0332232 | 701 Market Street Suite 718 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody New Mexico Services, LLC | Delaware | 20-8162939 | 701 Market Street Suite 769 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Operations Holding, LLC | Delaware | 26-3723890 | 701 Market Street Suite 815 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Powder River Mining, LLC | Delaware | 43-0996010 | 701 Market Street Suite 702 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Powder River Operations, LLC | Delaware | 20-3405797 | 701 Market Street Suite 700 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Powder River Services, LLC | Delaware | 26-3725850 | 701 Market Street Suite 826 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Rocky Mountain Management Services, LLC | Delaware | 26-3725390 | 701 Market Street Suite 823 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Rocky Mountain Services, LLC | Delaware | 20-8162706 | 701 Market Street Suite 767 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Sage Creek Mining, LLC | Delaware | 26-3730653 | 701 Market Street Suite 803 St. Louis, MO 63101 (314) 342-3400 | |||
| Exact Name of Obligor as Specified in its Charter |
State or Other Jurisdiction of Incorporation or Organization |
I.R.S. Employer Identification Number |
Address, Including Zip Code, and Telephone Number, Including Area Code, of Obligor’s Principal Executive Offices | |||
| Peabody School Creek Mining, LLC | Delaware | 20-2902073 | 701 Market Street Suite 738 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Services Holdings, LLC | Delaware | 26-3726126 | 701 Market Street Suite 814 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Southeast Mining, LLC | Delaware | 61-1901650 | 701 Market Street Suite 814 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Twentymile Mining, LLC | Delaware | 26-3725223 | 701 Market Street Suite 822 St. Louis, MO 63101-1826 (314) 342-3400 | |||
| Peabody Venezuela Coal Corp. | Delaware | 43-1609813 | 701 Market Street Suite 715 St. Louis, MO 63101-1826 (314) 342-3400 | |||
| Peabody Venture Fund, LLC | Delaware | 20-3405779 | 701 Market Street Suite 758 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody-Waterside Development, L.L.C. | Delaware | 75-3098342 | 701 Market Street Suite 921 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Western Coal Company | Delaware | 86-0766626 | P.O. Box 605 Kayenta, AZ 86033 (928) 677-3201 | |||
| Peabody Wild Boar Mining, LLC | Delaware | 26-3730759 | 701 Market Street Suite 825 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Wild Boar Services, LLC | Delaware | 26-3725591 | 701 Market Street Suite 824 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Williams Fork Mining, LLC | Delaware | 20-8162742 | 701 Market Street Suite 766 St. Louis, MO 63101 (314) 342-3400 | |||
| Peabody Wyoming Services, LLC | Delaware | 26-3723011 | 701 Market Street Suite 812 St. Louis, MO 63101 (314) 342-3400 | |||
| Exact Name of Obligor as Specified in its Charter |
State or Other Jurisdiction of Incorporation or Organization |
I.R.S. Employer Identification Number |
Address, Including Zip Code, and Telephone Number, Including Area Code, of Obligor’s Principal Executive Offices | |||
| PEC Equipment Company, LLC | Delaware | 20-0217950 | 701 Market Street Suite 726 St. Louis, MO 63101 (314) 342-3400 | |||
| Sage Creek Holdings, LLC | Delaware | 26-3286872 | 701 Market Street Suite 801 St. Louis, MO 63101 (314) 342-3400 | |||
| Sage Creek Land & Reserves, LLC | Delaware | 38-3936826 | 701 Market Street Suite 862 St. Louis, MO 63101 (314) 342-3400 | |||
| Seneca Coal Company, LLC | Delaware | 84-1273892 | 701 Market Street Suite 787 St. Louis, MO 63101 (314) 342-3400 | |||
| Seneca Property, LLC | Delaware | 36-4820253 | 701 Market Street Suite 862 St. Louis, MO 63101 (314) 342-3400 | |||
| Shoshone Coal Corporation | Delaware | 25-1336898 | 701 Market Street Suite 734 St. Louis, MO 63101 (314) 342-3400 | |||
| Twentymile Coal, LLC | Delaware | 95-3811846 | 701 Market Street Suite 731 St. Louis, MO 63101 (314) 342-3400 | |||
| United Minerals Company LLC | Indiana | 35-1922432 | 701 Market Street Suite 731 St. Louis, MO 63101 (314) 342-3400 | |||
| ITEM 1. | GENERAL INFORMATION. |
Furnish the following information as to the trustee:
| (a) | Name and address of each examining or supervising authority to which it is subject. |
Comptroller of Currency, Washington, D.C.
Federal Deposit Insurance Corporation, Washington, D.C.
| (b) | Whether it is authorized to exercise corporate trust powers. |
The trustee is authorized to exercise corporate trust powers.
| ITEM 2. | AFFILIATIONS WITH THE OBLIGOR. |
If the obligor is an affiliate of the trustee, describe each affiliation:
Based upon an examination of the books and records of the trustee and information available to the trustee, the obligor is not an affiliate of the trustee.
| ITEM 3 – 15. | Not applicable. |
| ITEM 16. | LIST OF EXHIBITS. |
Listed below are all exhibits filed as part of this Statement of Eligibility and Qualification.
| 1. | A copy of the Charter for Wilmington Trust, National Association. |
| 2. | The authority of Wilmington Trust, National Association to commence business was granted under the Charter for Wilmington Trust, National Association, incorporated herein by reference to Exhibit 1 above. |
| 3. | The authorization to exercise corporate trust powers was granted under the Charter for Wilmington Trust, National Association, incorporated herein by reference to Exhibit 1 above. |
| 4. | A copy of the existing By-Laws of Trustee, as now in effect, incorporated herein by reference to Exhibit 4of this Form T-1. |
| 5. | Not applicable. |
| 6. | The consent of Wilmington Trust, National Association as required by Section 321(b) of the Trust Indenture Act of 1939, attached hereto as Exhibit 6 of this Form T-1. |
| 7. | Current Report of the Condition of Wilmington Trust, National Association, published pursuant to law or the requirements of its supervising or examining authority, attached hereto as Exhibit 7 of this Form T-1. |
| 8. | Not applicable. |
| 9. | Not applicable. |
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Wilmington Trust, National Association, a national banking association organized and existing under the laws of the United States of America, has duly caused this Statement of Eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Minneapolis and State of Minnesota on the 26th day of March, 2021.
| WILMINGTON TRUST, NATIONAL ASSOCIATION | ||
| By: | /s/ Sarah Vilhauer | |
| Name: | Sarah Vilhauer | |
| Title: | Banking Officer | |
EXHIBIT 1
CHARTER OF WILMINGTON TRUST, NATIONAL ASSOCIATION
ARTICLES OF ASSOCIATION
OF
WILMINGTON TRUST, NATIONAL ASSOCIATION
For the purpose of organizing an association to perform any lawful activities of national banks, the undersigned do enter into the following articles of association:
FIRST. The title of this association shall be Wilmington Trust, National Association.
SECOND. The main office of the association shall be in the City of Wilmington, County of New Castle, State of Delaware. The general business of the association shall be conducted at its main office and its branches.
THIRD. The board of directors of this association shall consist of not less than five nor more than twenty-five persons, unless the OCC has exempted the bank from the 25-member limit. The exact number is to be fixed and determined from time to time by resolution of a majority of the full board of directors or by resolution of a majority of the shareholders at any annual or special meeting thereof. Each director shall own common or preferred stock of the association or of a holding company owning the association, with an aggregate par, fair market or equity value $1,000. Determination of these values may be based as of either (i) the date of purchase or (ii) the date the person became a director, whichever value is greater. Any combination of common or preferred stock of the association or holding company may be used.
Any vacancy in the board of directors may be filled by action of a majority of the remaining directors between meetings of shareholders. The board of directors may not increase the number of directors between meetings of shareholders to a number which:
| 1) | exceeds by more than two the number of directors last elected by shareholders where the number was 15 or less; or |
| 2) | exceeds by more than four the number of directors last elected by shareholders where the number was 16 or more, but in no event shall the number of directors exceed 25, unless the OCC has exempted the bank from the 25-member limit. |
Directors shall be elected for terms of one year and until their successors are elected and qualified. Terms of directors, including directors selected to fill vacancies, shall expire at the next regular meeting of shareholders at which directors are elected, unless the directors resign or are removed from office. Despite the expiration of a director’s term, the director shall continue to serve until his or her successor is elected and qualifies or until there is a decrease in the number of directors and his or her position is eliminated.
Honorary or advisory members of the board of directors, without voting power or power of final decision in matters concerning the business of the association, may be appointed by resolution of a majority of the full board of directors, or by resolution of shareholders at any annual or special meeting. Honorary or advisory directors shall not be counted to determine the number of directors of the association or the presence of a quorum in connection with any board action, and shall not be required to own qualifying shares.
FOURTH. There shall be an annual meeting of the shareholders to elect directors and transact whatever other business may be brought before the meeting. It shall be held at the main office or any other convenient place the board of directors may designate, on the day of each year specified therefor in the bylaws, or, if that day falls on a legal holiday in the state in which the association is located, on the next following banking day. If no election is held on the day fixed, or in the event of a legal holiday on the following banking day, an election may be held on any subsequent day within 60 days of the day fixed, to be designated by the board of directors, or, if the directors fail to fix the day, by shareholders representing two-thirds of the shares issued and outstanding. In all cases at least 10 days advance notice of the time, place and purpose of a shareholders’ meeting shall be given to the shareholders by first class mail, unless the OCC determines that an emergency circumstance exists. The sole shareholder of the bank is permitted to waive notice of the shareholders’ meeting.
In all elections of directors, the number of votes each common shareholder may cast will be determined by multiplying the number of shares such shareholder owns by the number of directors to be elected. Those votes may be cumulated and cast for a single candidate or may be distributed among two or more candidates in the manner selected by the shareholder. If, after the first ballot, subsequent ballots are necessary to elect directors, a shareholder may not vote shares that he or she has already fully cumulated and voted in favor of a successful candidate. On all other questions, each common shareholder shall be entitled to one vote for each share of stock held by him or her.
Nominations for election to the board of directors may be made by the board of directors or by any stockholder of any outstanding class of capital stock of the association entitled to vote for election of directors. Nominations other than those made by or on behalf of the existing management shall be made in writing and be delivered or mailed to the president of the association not less than 14 days nor more than 50 days prior to any meeting of shareholders called for the election of directors; provided, however, that if less than 21 days notice of the meeting is given to shareholders, such nominations shall be mailed or delivered to the president of the association not later than the close of business on the seventh day following the day on which the notice of meeting was mailed. Such notification shall contain the following information to the extent known to the notifying shareholder:
| 1) | The name and address of each proposed nominee. |
| 2) | The principal occupation of each proposed nominee. |
| 3) | The total number of shares of capital stock of the association that will be voted for each proposed nominee. |
| 4) | The name and residence address of the notifying shareholder. |
| 5) | The number of shares of capital stock of the association owned by the notifying shareholder. |
Nominations not made in accordance herewith may, in his/her discretion, be disregarded by the chairperson of the meeting, and the vote tellers may disregard all votes cast for each such nominee. No bylaw may unreasonably restrict the nomination of directors by shareholders.
A director may resign at any time by delivering written notice to the board of directors, its chairperson, or to the association, which resignation shall be effective when the notice is delivered unless the notice specifies a later effective date.
A director may be removed by shareholders at a meeting called to remove the director, when notice of the meeting stating that the purpose or one of the purposes is to remove the director is provided, if there is a failure to fulfill one of the affirmative requirements for qualification, or for cause; provided, however, that a director may not be removed if the number of votes sufficient to elect the director under cumulative voting is voted against the director’s removal.
FIFTH. The authorized amount of capital stock of this association shall be ten thousand shares of common stock of the par value of one hundred dollars ($100) each; but said capital stock may be increased or decreased from time to time, according to the provisions of the laws of the United States.
No holder of shares of the capital stock of any class of the association shall have any preemptive or preferential right of subscription to any shares of any class of stock of the association, whether now or hereafter authorized, or to any obligations convertible into stock of the association, issued, or sold, nor any right of subscription to any thereof other than such, if any, as the board of directors, in its discretion, may from time to time determine and at such price as the board of directors may from time to time fix. Preemptive rights also must be approved by a vote of holders of two-thirds of the bank’s outstanding voting shares. Unless otherwise specified in these articles of association or required by law, (1) all matters requiring shareholder action, including amendments to the articles of association, must be approved by shareholders owning a majority voting interest in the outstanding voting stock, and (2) each shareholder shall be entitled to one vote per share.
Unless otherwise specified in these articles of association or required by law, all shares of voting stock shall be voted together as a class, on any matters requiring shareholder approval. If a proposed amendment would affect two or more classes or series in the same or a substantially similar way, all the classes or series so affected must vote together as a single voting group on the proposed amendment.
Shares of one class or series may be issued as a dividend for shares of the same class or series on a pro rata basis and without consideration. Shares of one class or series may be issued as share dividends for a different class or series of stock if approved by a majority of the votes entitled to be cast by the class or series to be issued, unless there are no outstanding shares of the class or series to be issued. Unless otherwise provided by the board of directors, the record date for determining shareholders entitled to a share dividend shall be the date authorized by the board of directors for the share dividend.
Unless otherwise provided in the bylaws, the record date for determining shareholders entitled to notice of and to vote at any meeting is the close of business on the day before the first notice is mailed or otherwise sent to the shareholders, provided that in no event may a record date be more than 70 days before the meeting.
If a shareholder is entitled to fractional shares pursuant to a stock dividend, consolidation or merger, reverse stock split or otherwise, the association may: (a) issue fractional shares; (b) in lieu of the issuance of fractional shares, issue script or warrants entitling the holder to receive a full share upon surrendering enough script or warrants to equal a full share; (c) if there is an established and active market in the association’s stock, make reasonable arrangements to provide the shareholder with an opportunity to realize a fair price through sale of the fraction, or purchase of the additional fraction required for a full share; (d) remit the cash equivalent of the fraction to the shareholder; or (e) sell full shares representing all the fractions at public auction or to the highest bidder after having solicited and received sealed bids from at least three licensed stock brokers; and distribute the proceeds pro rata to shareholders who otherwise would be entitled to the fractional shares. The holder of a fractional share is entitled to exercise the rights for shareholder, including the right to vote, to receive dividends, and to participate in the assets of the association upon liquidation, in proportion to the fractional interest. The holder of script or warrants is not entitled to any of these rights unless the script or warrants explicitly provide for such rights. The script or warrants may be subject to such additional conditions as: (1) that the script or warrants will become void if not exchanged for full shares before a specified date; and (2) that the shares for which the script or warrants are exchangeable may be sold at the option of the association and the proceeds paid to scriptholders.
The association, at any time and from time to time, may authorize and issue debt obligations, whether or not subordinated, without the approval of the shareholders. Obligations classified as debt, whether or not subordinated, which may be issued by the association without the approval of shareholders, do not carry voting rights on any issue, including an increase or decrease in the aggregate number of the securities, or the exchange or reclassification of all or part of securities into securities of another class or series.
SIXTH. The board of directors shall appoint one of its members president of this association, and one of its members chairperson of the board and shall have the power to appoint one or more vice presidents, a secretary who shall keep minutes of the directors’ and shareholders’ meetings and be responsible for authenticating the records of the association, and such other officers and employees as may be required to transact the business of this association.
A duly appointed officer may appoint one or more officers or assistant officers if authorized by the board of directors in accordance with the bylaws.
The board of directors shall have the power to:
| 1) | Define the duties of the officers, employees, and agents of the association. |
| 2) | Delegate the performance of its duties, but not the responsibility for its duties, to the officers, employees, and agents of the association. |
| 3) | Fix the compensation and enter into employment contracts with its officers and employees upon reasonable terms and conditions consistent with applicable law. |
| 4) | Dismiss officers and employees. |
| 5) | Require bonds from officers and employees and to fix the penalty thereof. |
| 6) | Ratify written policies authorized by the association’s management or committees of the board. |
| 7) | Regulate the manner in which any increase or decrease of the capital of the association shall be made, provided that nothing herein shall restrict the power of shareholders to increase or decrease the capital of the association in accordance with law, and nothing shall raise or lower from two-thirds the percentage required for shareholder approval to increase or reduce the capital. |
| 8) | Manage and administer the business and affairs of the association. |
| 9) | Adopt initial bylaws, not inconsistent with law or the articles of association, for managing the business and regulating the affairs of the association. |
| 10) | Amend or repeal bylaws, except to the extent that the articles of association reserve this power in whole or in part to shareholders. |
| 11) | Make contracts. |
| 12) | Generally perform all acts that are legal for a board of directors to perform. |
SEVENTH. The board of directors shall have the power to change the location of the main office to any other place within the limits of Wilmington, Delaware, without the approval of the shareholders, or with a vote of shareholders owning two-thirds of the stock of such association for a relocation outside such limits and upon receipt of a certificate of approval from the Comptroller of the Currency, to any other location within or outside the limits of Wilmington Delaware, but not more than 30 miles beyond such limits. The board of directors shall have the power to establish or change the location of any branch or branches of the association to any other location permitted under applicable law, without approval of shareholders, subject to approval by the Comptroller of the Currency.
EIGHTH. The corporate existence of this association shall continue until termination according to the laws of the United States.
NINTH. The board of directors of this association, or any one or more shareholders owning, in the aggregate, not less than 50 percent of the stock of this association, may call a special meeting of shareholders at any time. Unless otherwise provided by the bylaws or the laws of the United States, a notice of the time, place, and purpose of every annual and special meeting of the shareholders shall be given at least 10 days prior to the meeting by first-class mail, unless the OCC determines that an emergency circumstance exists. If the association is a wholly-owned subsidiary, the sole shareholder may waive notice of the shareholders’ meeting. Unless otherwise provided by the bylaws or these articles, any action requiring approval of shareholders must be effected at a duly called annual or special meeting.
TENTH. For purposes of this Article Tenth, the term “institution-affiliated party” shall mean any institution-affiliated party of the association as such term is defined in 12 U.S.C. 1813(u).
Any institution-affiliated party (or his or her heirs, executors or administrators) may be indemnified or reimbursed by the association for reasonable expenses actually incurred in connection with any threatened, pending or completed actions or proceedings and appeals therein, whether civil, criminal, governmental, administrative or investigative, in accordance with and to the fullest extent permitted by law, as such law now or hereafter exists; provided, however, that when an administrative proceeding or action instituted by a federal banking agency results in a final order or settlement pursuant to which such person: (i) is assessed a civil money penalty, (ii) is removed from office or prohibited from participating in the conduct of the affairs of the association, or (iii) is required to cease and desist from or to take any affirmative action described in 12 U.S.C. 1818(b) with respect to the association, then the association shall require the repayment of all legal fees and expenses advanced pursuant to the next succeeding paragraph and may not indemnify such institution-affiliated parties (or their heirs, executors or administrators) for expenses, including expenses for legal fees, penalties or other payments incurred. The association shall provide indemnification in connection with an action or proceeding (or part thereof) initiated by an institution-affiliated party (or by his or her heirs, executors or administrators) only if such action or proceeding (or part thereof) was authorized by the board of directors.
Expenses incurred by an institution-affiliated party (or by his or her heirs, executors or administrators) in connection with any action or proceeding under 12 U.S.C. 164 or 1818 may be paid by the association in advance of the final disposition of such action or proceeding upon (a) a determination by the board of directors acting by a quorum consisting of directors who are not parties to such action or proceeding that the institution-affiliated party (or his or her heirs, executors or administrators) has a reasonable basis for prevailing on the merits, (b) a determination that the indemnified individual (or his or her heirs, executors or administrators) will have the financial capacity to reimburse the bank in the event he or she does not prevail, (c) a determination that the payment of expenses and fees by the association will not adversely affect the safety and soundness of the association, and (d) receipt of an undertaking by or on behalf of such institution-affiliated party (or by his or her heirs, executors or administrators) to repay such advancement in the event of a final order or settlement pursuant to which such person: (i) is assessed a civil money penalty, (ii) is removed from office or prohibited from participating in the conduct of the affairs of the association, or (iii) is required to cease and desist from or to take any affirmative action described in 12 U.S.C. 1818(b) with respect to the association. In all other instances, expenses incurred by an institution-affiliated party (or by his or her heirs, executors or administrators) in
connection with any action or proceeding as to which indemnification may be given under these articles of association may be paid by the association in advance of the final disposition of such action or proceeding upon (a) receipt of an undertaking by or on behalf of such institution-affiliated party (or by or on behalf of his or her heirs, executors or administrators) to repay such advancement in the event that such institution-affiliated party (or his or her heirs, executors or administrators) is ultimately found not to be entitled to indemnification as authorized by these articles of association and (b) approval by the board of directors acting by a quorum consisting of directors who are not parties to such action or proceeding or, if such a quorum is not obtainable, then approval by stockholders. To the extent permitted by law, the board of directors or, if applicable, the stockholders, shall not be required to find that the institution-affiliated party has met the applicable standard of conduct provided by law for indemnification in connection with such action or proceeding.
In the event that a majority of the members of the board of directors are named as respondents in an administrative proceeding or civil action and request indemnification, the remaining members of the board may authorize independent legal counsel to review the indemnification request and provide the remaining members of the board with a written opinion of counsel as to whether the conditions delineated in the first four paragraphs of this Article Tenth have been met. If independent legal counsel opines that said conditions have been met, the remaining members of the board of directors may rely on such opinion in authorizing the requested indemnification.
In the event that all of the members of the board of directors are named as respondents in an administrative proceeding or civil action and request indemnification, the board shall authorize independent legal counsel to review the indemnification request and provide the board with a written opinion of counsel as to whether the conditions delineated in the first four paragraphs of this Article Tenth have been met. If legal counsel opines that said conditions have been met, the board of directors may rely on such opinion in authorizing the requested indemnification.
To the extent permitted under applicable law, the rights of indemnification and to the advancement of expenses provided in these articles of association (a) shall be available with respect to events occurring prior to the adoption of these articles of association, (b) shall continue to exist after any restrictive amendment of these articles of association with respect to events occurring prior to such amendment, (c) may be interpreted on the basis of applicable law in effect at the time of the occurrence of the event or events giving rise to the action or proceeding, or on the basis of applicable law in effect at the time such rights are claimed, and (d) are in the nature of contract rights which may be enforced in any court of competent jurisdiction as if the association and the institution-affiliated party (or his or her heirs, executors or administrators) for whom such rights are sought were parties to a separate written agreement.
The rights of indemnification and to the advancement of expenses provided in these articles of association shall not, to the extent permitted under applicable law, be deemed exclusive of any other rights to which any such institution affiliated party (or his or her heirs, executors or administrators) may now or hereafter be otherwise entitled whether contained in these articles of association, the bylaws, a resolution of stockholders, a resolution of the board of directors, or an agreement providing such indemnification, the creation of such other rights being hereby expressly authorized. Without limiting the generality of the foregoing, the rights of indemnification and to the advancement of expenses provided in these articles of association shall not be deemed exclusive of any rights, pursuant to statute or otherwise, of any such institution-affiliated party (or of his or her heirs, executors or administrators) in any such action or proceeding to have assessed or allowed in his or her favor, against the association or otherwise, his or her costs and expenses incurred therein or in connection therewith or any part thereof.
If this Article Tenth or any part hereof shall be held unenforceable in any respect by a court of competent jurisdiction, it shall be deemed modified to the minimum extent necessary to make it enforceable, and the remainder of this Article Tenth shall remain fully enforceable.
The association may, upon affirmative vote of a majority of its board of directors, purchase insurance to indemnify its institution-affiliated parties to the extent that such indemnification is allowed in these articles of association; provided, however, that no such insurance shall include coverage to pay or reimburse any institution-affiliated party for the cost of any judgment or civil money penalty assessed against such person in an administrative proceeding or civil action commenced by any federal banking agency. Such insurance may, but need not, be for the benefit of all institution-affiliated parties.
ELEVENTH. These articles of association may be amended at any regular or special meeting of the shareholders by the affirmative vote of the holders of a majority of the stock of this association, unless the vote of the holders of a greater amount of stock is required by law, and in that case by the vote of the holders of such greater amount. The association’s board of directors may propose one or more amendments to the articles of association for submission to the shareholders.
EXHIBIT 4
BY-LAWS OF WILMINGTON TRUST, NATIONAL ASSOCIATION
AMENDED AND RESTATED BYLAWS
OF
WILMINGTON TRUST, NATIONAL ASSOCIATION
(Effective as of April 17, 2018)
ARTICLE I
Meetings of Shareholders
Section 1. Annual Meeting. The annual meeting of the shareholders to elect directors and transact whatever other business may properly come before the meeting shall be held at the main office of the association, Rodney Square North, 1100 Market Street, City of Wilmington, State of Delaware, at 1:00 o’clock p.m. on the first Tuesday in March of each year, or at such other place and time as the board of directors may designate, or if that date falls on a legal holiday in Delaware, on the next following banking day. Notice of the meeting shall be mailed by first class mail, postage prepaid, at least 10 days and no more than 60 days prior to the date thereof, addressed to each shareholder at his/her address appearing on the books of the association. If, for any cause, an election of directors is not made on that date, or in the event of a legal holiday, on the next following banking day, an election may be held on any subsequent day within 60 days of the date fixed, to be designated by the board of directors, or, if the directors fail to fix the date, by shareholders representing two-thirds of the shares. In these circumstances, at least 10 days’ notice must be given by first class mail to shareholders.
Section 2. Special Meetings. Except as otherwise specifically provided by statute, special meetings of the shareholders may be called for any purpose at any time by the board of directors or by any one or more shareholders owning, in the aggregate, not less than fifty percent of the stock of the association. Every such special meeting, unless otherwise provided by law, shall be called by mailing, postage prepaid, not less than 10 days nor more than 60 days prior to the date fixed for the meeting, to each shareholder at the address appearing on the books of the association a notice stating the purpose of the meeting.
The board of directors may fix a record date for determining shareholders entitled to notice and to vote at any meeting, in reasonable proximity to the date of giving notice to the shareholders of such meeting. The record date for determining shareholders entitled to demand a special meeting is the date the first shareholder signs a demand for the meeting describing the purpose or purposes for which it is to be held.
A special meeting may be called by shareholders or the board of directors to amend the articles of association or bylaws, whether or not such bylaws may be amended by the board of directors in the absence of shareholder approval.
If an annual or special shareholders’ meeting is adjourned to a different date, time, or place, notice need not be given of the new date, time or place, if the new date, time or place is announced at the meeting before adjournment, unless any additional items of business are to be considered, or the association becomes aware of an intervening event materially affecting any matter to be voted on more than 10 days prior to the date to which the meeting is adjourned. If a new record date for the adjourned meeting is fixed, however, notice of the adjourned meeting must be given to persons who are shareholders as of the new record date. If, however, the meeting to elect the directors is adjourned before the election takes place, at least ten days’ notice of the new election must be given to the shareholders by first-class mail.
– 21 –
Section 3. Nominations of Directors. Nominations for election to the board of directors may be made by the board of directors or by any stockholder of any outstanding class of capital stock of the association entitled to vote for the election of directors. Nominations, other than those made by or on behalf of the existing management of the association, shall be made in writing and shall be delivered or mailed to the president of the association and the Comptroller of the Currency, Washington, D.C., not less than 14 days nor more than 50 days prior to any meeting of shareholders called for the election of directors; provided, however, that if less than 21 days’ notice of the meeting is given to shareholders, such nomination shall be mailed or delivered to the president of the association not later than the close of business on the seventh day following the day on which the notice of meeting was mailed. Such notification shall contain the following information to the extent known to the notifying shareholder:
| (1) | The name and address of each proposed nominee; |
| (2) | The principal occupation of each proposed nominee; |
| (3) | The total number of shares of capital stock of the association that will be voted for each proposed nominee; |
| (4) | The name and residence of the notifying shareholder; and |
| (5) | The number of shares of capital stock of the association owned by the notifying shareholder. |
Nominations not made in accordance herewith may, in his/her discretion, be disregarded by the chairperson of the meeting, and upon his/her instructions, the vote tellers may disregard all votes cast for each such nominee.
Section 4. Proxies. Shareholders may vote at any meeting of the shareholders by proxies duly authorized in writing, but no officer or employee of this association shall act as proxy. Proxies shall be valid only for one meeting, to be specified therein, and any adjournments of such meeting. Proxies shall be dated and filed with the records of the meeting. Proxies with facsimile signatures may be used and unexecuted proxies may be counted upon receipt of a written confirmation from the shareholder. Proxies meeting the above requirements submitted at any time during a meeting shall be accepted.
Section 5. Quorum. A majority of the outstanding capital stock, represented in person or by proxy, shall constitute a quorum at any meeting of shareholders, unless otherwise provided by law, or by the shareholders or directors pursuant to Article IX, Section 2, but less than a quorum may adjourn any meeting, from time to time, and the meeting may be held, as adjourned, without further notice. A majority of the votes cast shall decide every question or matter submitted to the shareholders at any meeting, unless otherwise provided by law or by the articles of association, or by the shareholders or directors pursuant to Article IX, Section 2. If a meeting for the election of directors is not held on the fixed date, at least 10 days’ notice must be given by first-class mail to the shareholders.
– 22 –
ARTICLE II
Directors
Section 1. Board of Directors. The board of directors shall have the power to manage and administer the business and affairs of the association. Except as expressly limited by law, all corporate powers of the association shall be vested in and may be exercised by the board of directors.
Section 2. Number. The board of directors shall consist of not less than five nor more than twenty-five members, unless the OCC has exempted the bank from the 25-member limit. The exact number within such minimum and maximum limits is to be fixed and determined from time to time by resolution of a majority of the full board of directors or by resolution of a majority of the shareholders at any meeting thereof.
Section 3. Organization Meeting. The secretary or treasurer, upon receiving the certificate of the judges of the result of any election, shall notify the directors-elect of their election and of the time at which they are required to meet at the main office of the association, or at such other place in the cities of Wilmington, Delaware or Buffalo, New York, to organize the new board of directors and elect and appoint officers of the association for the succeeding year. Such meeting shall be held on the day of the election or as soon thereafter as practicable, and, in any event, within 30 days thereof. If, at the time fixed for such meeting, there shall not be a quorum, the directors present may adjourn the meeting, from time to time, until a quorum is obtained.
Section 4. Regular Meetings. The Board of Directors may, at any time and from time to time, by resolution designate the place, date and hour for the holding of a regular meeting, but in the absence of any such designation, regular meetings of the board of directors shall be held, without notice, on the first Tuesday of each March, June and September, and on the second Tuesday of each December at the main office or other such place as the board of directors may designate. When any regular meeting of the board of directors falls upon a holiday, the meeting shall be held on the next banking business day unless the board of directors shall designate another day.
Section 5. Special Meetings. Special meetings of the board of directors may be called by the Chairman of the Board of the association, or at the request of two or more directors. Each member of the board of directors shall be given notice by telegram, first class mail, or in person stating the time and place of each special meeting.
Section 6. Quorum. A majority of the entire board then in office shall constitute a quorum at any meeting, except when otherwise provided by law or these bylaws, but a lesser number may adjourn any meeting, from time to time, and the meeting may be held, as adjourned, without further notice. If the number of directors present at the meeting is reduced below the number that would constitute a quorum, no business may be transacted, except selecting directors to fill vacancies in conformance with Article II, Section 7. If a quorum is present, the board of directors may take action through the vote of a majority of the directors who are in attendance.
Section 7. Meetings by Conference Telephone. Any one or more members of the board of directors or any committee thereof may participate in a meeting of such board or committees by means of a conference telephone or similar communications equipment allowing all persons participating in the meeting to hear each other at the same time. Participation in a meeting by such means shall constitute presence in person at such meeting.
– 23 –
Section 8. Procedures. The order of business and all other matters of procedure at every meeting of the board of directors may be determined by the person presiding at the meeting.
Section 9. Removal of Directors. Any director may be removed for cause, at any meeting of stockholders notice of which shall have referred to the proposed action, by vote of the stockholders. Any director may be removed without cause, at any meeting of stockholders notice of which shall have referred to the proposed action, by the vote of the holders of a majority of the shares of the Corporation entitled to vote. Any director may be removed for cause, at any meeting of the directors notice of which shall have referred to the proposed action, by vote of a majority of the entire Board of Directors.
Section 10. Vacancies. When any vacancy occurs among the directors, a majority of the remaining members of the board of directors, according to the laws of the United States, may appoint a director to fill such vacancy at any regular meeting of the board of directors, or at a special meeting called for that purpose at which a quorum is present, or if the directors remaining in office constitute fewer than a quorum of the board of directors, by the affirmative vote of a majority of all the directors remaining in office, or by shareholders at a special meeting called for that purpose in conformance with Section 2 of Article I. At any such shareholder meeting, each shareholder entitled to vote shall have the right to multiply the number of votes he or she is entitled to cast by the number of vacancies being filled and cast the product for a single candidate or distribute the product among two or more candidates. A vacancy that will occur at a specific later date (by reason of a resignation effective at a later date) may be filled before the vacancy occurs but the new director may not take office until the vacancy occurs.
ARTICLE III
Committees of the Board
The board of directors has power over and is solely responsible for the management, supervision, and administration of the association. The board of directors may delegate its power, but none of its responsibilities, to such persons or committees as the board may determine.
The board of directors must formally ratify written policies authorized by committees of the board of directors before such policies become effective. Each committee must have one or more member(s), and who may be an officer of the association or an officer or director of any affiliate of the association, who serve at the pleasure of the board of directors. Provisions of the articles of association and these bylaws governing place of meetings, notice of meeting, quorum and voting requirements of the board of directors, apply to committees and their members as well. The creation of a committee and appointment of members to it must be approved by the board of directors.
Section 1. Loan Committee. There shall be a loan committee composed of not less than 2 directors, appointed by the board of directors annually or more often. The loan committee, on behalf of the bank, shall have power to discount and purchase bills, notes and other evidences of debt, to buy and sell bills of exchange, to examine and approve loans and discounts, to exercise authority regarding loans and discounts, and to exercise, when the board of directors is not in session, all other powers of the board of directors that may lawfully be delegated. The loan committee shall keep minutes of its meetings, and such minutes shall be submitted at the next regular meeting of the board of directors at which a quorum is present, and any action taken by the board of directors with respect thereto shall be entered in the minutes of the board of directors.
– 24 –
Section 2. Investment Committee. There shall be an investment committee composed of not less than 2 directors, appointed by the board of directors annually or more often. The investment committee, on behalf of the bank, shall have the power to ensure adherence to the investment policy, to recommend amendments thereto, to purchase and sell securities, to exercise authority regarding investments and to exercise, when the board of directors is not in session, all other powers of the board of directors regarding investment securities that may be lawfully delegated. The investment committee shall keep minutes of its meetings, and such minutes shall be submitted at the next regular meeting of the board of directors at which a quorum is present, and any action taken by the board of directors with respect thereto shall be entered in the minutes of the board of directors.
Section 3. Examining Committee. There shall be an examining committee composed of not less than 2 directors, exclusive of any active officers, appointed by the board of directors annually or more often. The duty of that committee shall be to examine at least once during each calendar year and within 15 months of the last examination the affairs of the association or cause suitable examinations to be made by auditors responsible only to the board of directors and to report the result of such examination in writing to the board of directors at the next regular meeting thereafter. Such report shall state whether the association is in a sound condition, and whether adequate internal controls and procedures are being maintained and shall recommend to the board of directors such changes in the manner of conducting the affairs of the association as shall be deemed advisable.
Notwithstanding the provisions of the first paragraph of this section 3, the responsibility and authority of the Examining Committee may, if authorized by law, be given over to a duly constituted audit committee of the association’s parent corporation by a resolution duly adopted by the board of directors.
Section 4. Trust Audit Committee. There shall be a trust audit committee in conformance with Section 1 of Article V.
Section 5. Other Committees. The board of directors may appoint, from time to time, from its own members, compensation, special litigation and other committees of one or more persons, for such purposes and with such powers as the board of directors may determine.
| However, | a committee may not: |
| (1) | Authorize distributions of assets or dividends; |
| (2) | Approve action required to be approved by shareholders; |
| (3) | Fill vacancies on the board of directors or any of its committees; |
| (5) | Amend articles of association; |
| (6) | Adopt, amend or repeal bylaws; or |
| (6) | Authorize or approve issuance or sale or contract for sale of shares, or determine the designation and relative rights, preferences and limitations of a class or series of shares. |
Section 6. Committee Members’ Fees. Committee members may receive a fee for their services as committee members and traveling and other out-of-pocket expenses incurred in attending any meeting of a committee of which they are a member. The fee may be a fixed sum to be paid for attending each meeting or a fixed sum to be paid quarterly, or semiannually, irrespective of the number of meetings attended or not attended. The amount of the fee and the basis on which it shall be paid shall be determined by the board of directors.
– 25 –
ARTICLE IV
Officers and Employees
Section 1. Officers. The board of directors shall annually, at the Annual Reorganization Meeting of the board of directors following the annual meeting of the shareholders, appoint or elect a Chairperson of the Board, a Chief Executive Officer and a President, and one or more Vice Presidents, a Corporate Secretary, a Treasurer, a General Auditor, and such other officers as it may determine. At the Annual Reorganization Meeting, the board of directors shall also elect or reelect all of the officers of the association to hold office until the next Annual Reorganization Meeting. In the interim between Annual Reorganization Meetings, the board of directors may also elect or appoint a Chief Executive Officer, a President or such additional officers to the rank of Vice President, including (without limitation as to title or number) one or more Administrative Vice Presidents, Group Vice Presidents, Senior Vice Presidents and Executive Vice Presidents, and any other officer positions as they deem necessary and appropriate. The Chief Executive Officer of M&T Bank, the head of the Human Resources Department of M&T Bank, and any one executive Vice Chairman of M&T Bank, acting jointly, may appoint one or more officers to the rank of Executive Vice President or Senior Vice President. The head of the Human Resources Department of M&T Bank or his or her designee or designees, may appoint other officers up to the rank of Group Vice President, including (without limitation as to title or number) one or more Administrative Vice Presidents, Vice Presidents, Assistant Vice Presidents, Assistant Secretaries, Assistant Treasurers and Assistant Auditors, and any other officer positions as they deem necessary and appropriate. Each such person elected or appointed by the board of directors, the Chief Executive Officer of M&T Bank, the head of the Human Resources Department of M&T Bank, and an executive Vice Chairman of M&T Bank, acting jointly, or the head of the Human Resources Department of M&T Bank or his or her designee or designees, in between Annual Reorganization Meetings shall hold office until the next Annual Reorganization Meeting unless otherwise determined by the board of directors or such authorized officers.
Section 2. Chairperson of the Board. The board of directors shall appoint one of its members to be the chairperson of the board to serve at its pleasure. Such person shall preside at all meetings of the board of directors. The chairperson of the board shall supervise the carrying out of the policies adopted or approved by the board of directors; shall have general executive powers, as well as the specific powers conferred by these bylaws; and shall also have and may exercise such further powers and duties as from time to time may be conferred upon or assigned by the board of directors.
Section 3. President. The board of directors shall appoint one of its members to be the president of the association. In the absence of the chairperson, the president shall preside at any meeting of the board of directors. The president shall have general executive powers and shall have and may exercise any and all other powers and duties pertaining by law, regulation, or practice to the office of president, or imposed by these bylaws. The president shall also have and may exercise such further powers and duties as from time to time may be conferred or assigned by the board of directors.
Section 4. Vice President. The board of directors may appoint one or more vice presidents. Each vice president shall have such powers and duties as may be assigned by the board of directors. One vice president shall be designated by the board of directors, in the absence of the president, to perform all the duties of the president.
Section 5. Secretary. The board of directors shall appoint a secretary, treasurer, or other designated officer who shall be secretary of the board of directors and of the association and who shall keep accurate minutes of all meetings. The secretary shall attend to the giving of all notices required by these bylaws;
– 26 –
shall be custodian of the corporate seal, records, documents and papers of the association; shall provide for the keeping of proper records of all transactions of the association; shall have and may exercise any and all other powers and duties pertaining by law, regulation or practice to the office of treasurer, or imposed by these bylaws; and shall also perform such other duties as may be assigned from time to time, by the board of directors.
Section 6. Other Officers. The board of directors may appoint one or more assistant vice presidents, one or more trust officers, one or more assistant secretaries, one or more assistant treasurers, one or more managers and assistant managers of branches and such other officers and attorneys in fact as from time to time may appear to the board of directors to be required or desirable to transact the business of the association. Such officers shall respectively exercise such powers and perform such duties as pertain to their several offices, or as may be conferred upon or assigned to them by the board of directors, the chairperson of the board, or the president. The board of directors may authorize an officer to appoint one or more officers or assistant officers.
Section 7. Tenure of Office. The president and all other officers shall hold office for the current year for which the board of directors was elected, unless they shall resign, become disqualified, or be removed; and any vacancy occurring in the office of president shall be filled promptly by the board of directors.
Section 8. Resignation. An officer may resign at any time by delivering notice to the association. A resignation is effective when the notice is given unless the notice specifies a later effective date.
ARTICLE V
Fiduciary Activities
Section 1. Trust Audit Committee. There shall be a Trust Audit Committee composed of not less than 2 directors, appointed by the board of directors, which shall, at least once during each calendar year make suitable audits of the association’s fiduciary activities or cause suitable audits to be made by auditors responsible only to the board, and at such time shall ascertain whether fiduciary powers have been administered according to law, Part 9 of the Regulations of the Comptroller of the Currency, and sound fiduciary principles. Such committee: (1) must not include any officers of the bank or an affiliate who participate significantly in the administration of the bank’s fiduciary activities; and (2) must consist of a majority of members who are not also members of any committee to which the board of directors has delegated power to manage and control the fiduciary activities of the bank.
Notwithstanding the provisions of the first paragraph of this section 1, the responsibility and authority of the Trust Audit Committee may, if authorized by law, be given over to a duly constituted audit committee of the association’s parent corporation by a resolution duly adopted by the board of directors.
Section 2. Fiduciary Files. There shall be maintained by the association all fiduciary records necessary to assure that its fiduciary responsibilities have been properly undertaken and discharged.
Section 3. Trust Investments. Funds held in a fiduciary capacity shall be invested according to the instrument establishing the fiduciary relationship and applicable law. Where such instrument does not specify the character and class of investments to be made, but does vest in the association investment discretion, funds held pursuant to such instrument shall be invested in investments in which corporate fiduciaries may invest under applicable law.
– 27 –
ARTICLE VI
Stock and Stock Certificates
Section 1. Transfers. Shares of stock shall be transferable on the books of the association, and a transfer book shall be kept in which all transfers of stock shall be recorded. Every person becoming a shareholder by such transfer shall in proportion to such shareholder’s shares, succeed to all rights of the prior holder of such shares. The board of directors may impose conditions upon the transfer of the stock reasonably calculated to simplify the work of the association with respect to stock transfers, voting at shareholder meetings and related matters and to protect it against fraudulent transfers.
Section 2. Stock Certificates. Certificates of stock shall bear the signature of the president (which may be engraved, printed or impressed) and shall be signed manually or by facsimile process by the secretary, assistant secretary, treasurer, assistant treasurer, or any other officer appointed by the board of directors for that purpose, to be known as an authorized officer, and the seal of the association shall be engraved thereon. Each certificate shall recite on its face that the stock represented thereby is transferable only upon the books of the association properly endorsed.
The board of directors may adopt or use procedures for replacing lost, stolen, or destroyed stock certificates as permitted by law.
The association may establish a procedure through which the beneficial owner of shares that are registered in the name of a nominee may be recognized by the association as the shareholder. The procedure may set forth:
| (1) | The types of nominees to which it applies; |
| (2) | The rights or privileges that the association recognizes in a beneficial owner; |
| (3) | How the nominee may request the association to recognize the beneficial owner as the shareholder; |
| (4) | The information that must be provided when the procedure is selected; |
| (5) | The period over which the association will continue to recognize the beneficial owner as the shareholder; |
| (6) | Other aspects of the rights and duties created. |
ARTICLE VII
Corporate Seal
Section 1. Seal. The seal of the association shall be in such form as may be determined from time to time by the board of directors. The president, the treasurer, the secretary or any assistant treasurer or assistant secretary, or other officer thereunto designated by the board of directors shall have authority to affix the corporate seal to any document requiring such seal and to attest the same. The seal on any corporate obligation for the payment of money may be facsimile.
– 28 –
ARTICLE VIII
Miscellaneous Provisions
Section 1. Fiscal Year. The fiscal year of the association shall be the calendar year.
Section 2. Execution of Instruments. All agreements, indentures, mortgages, deeds, conveyances, transfers, certificates, declarations, receipts, discharges, releases, satisfactions, settlements, petitions, schedules, accounts, affidavits, bonds, undertakings, proxies and other instruments or documents may be signed, executed, acknowledged, verified, delivered or accepted on behalf of the association by the chairperson of the board, or the president, or any vice president, or the secretary, or the treasurer, or, if in connection with the exercise of fiduciary powers of the association, by any of those offices or by any trust officer. Any such instruments may also be executed, acknowledged, verified, delivered or accepted on behalf of the association in such other manner and by such other officers as the board of directors may from time to time direct. The provisions of this section 2 are supplementary to any other provision of these bylaws.
Section 3. Records. The articles of association, the bylaws and the proceedings of all meetings of the shareholders, the board of directors, and standing committees of the board of directors shall be recorded in appropriate minute books provided for that purpose. The minutes of each meeting shall be signed by the secretary, treasurer or other officer appointed to act as secretary of the meeting.
Section 4. Corporate Governance Procedures. To the extent not inconsistent with federal banking statutes and regulations, or safe and sound banking practices, the association may follow the Delaware General Corporation Law, Del. Code Ann. tit. 8 (1991, as amended 1994, and as amended thereafter) with respect to matters of corporate governance procedures.
Section 5. Indemnification. For purposes of this Section 5 of Article VIII, the term “institution-affiliated party” shall mean any institution-affiliated party of the association as such term is defined in 12 U.S.C. 1813(u).
Any institution-affiliated party (or his or her heirs, executors or administrators) may be indemnified or reimbursed by the association for reasonable expenses actually incurred in connection with any threatened, pending or completed actions or proceedings and appeals therein, whether civil, criminal, governmental, administrative or investigative, in accordance with and to the fullest extent permitted by law, as such law now or hereafter exists; provided, however, that when an administrative proceeding or action instituted by a federal banking agency results in a final order or settlement pursuant to which such person: (i) is assessed a civil money penalty, (ii) is removed from office or prohibited from participating in the conduct of the affairs of the association, or (iii) is required to cease and desist from or to take any affirmative action described in 12 U.S.C. 1818(b) with respect to the association, then the association shall require the repayment of all legal fees and expenses advanced pursuant to the next succeeding paragraph and may not indemnify such institution-affiliated parties (or their heirs, executors or administrators) for expenses, including expenses for legal fees, penalties or other payments incurred. The association shall provide indemnification in connection with an action or proceeding (or part thereof) initiated by an institution-affiliated party (or by his or her heirs, executors or administrators) only if such action or proceeding (or part thereof) was authorized by the board of directors.
Expenses incurred by an institution-affiliated party (or by his or her heirs, executors or administrators) in connection with any action or proceeding under 12 U.S.C. 164 or 1818 may be paid by the association in advance of the final disposition of such action or proceeding upon (a) a determination by
– 29 –
the board of directors acting by a quorum consisting of directors who are not parties to such action or proceeding that the institution-affiliated party (or his or her heirs, executors or administrators) has a reasonable basis for prevailing on the merits, (b) a determination that the indemnified individual (or his or her heirs, executors or administrators) will have the financial capacity to reimburse the bank in the event he or she does not prevail, (c) a determination that the payment of expenses and fees by the association will not adversely affect the safety and soundness of the association, and (d) receipt of an undertaking by or on behalf of such institution-affiliated party (or by his or her heirs, executors or administrators) to repay such advancement in the event of a final order or settlement pursuant to which such person: (i) is assessed a civil money penalty, (ii) is removed from office or prohibited from participating in the conduct of the affairs of the association, or (iii) is required to cease and desist from or to take any affirmative action described in 12 U.S.C. 1818(b) with respect to the association. In all other instances, expenses incurred by an institution-affiliated party (or by his or her heirs, executors or administrators) in connection with any action or proceeding as to which indemnification may be given under these articles of association may be paid by the association in advance of the final disposition of such action or proceeding upon (a) receipt of an undertaking by or on behalf of such institution-affiliated party (or by or on behalf of his or her heirs, executors or administrators) to repay such advancement in the event that such institution- affiliated party (or his or her heirs, executors or administrators) is ultimately found not to be entitled to indemnification as authorized by these bylaws and (b) approval by the board of directors acting by a quorum consisting of directors who are not parties to such action or proceeding or, if such a quorum is not obtainable, then approval by stockholders. To the extent permitted by law, the board of directors or, if applicable, the stockholders, shall not be required to find that the institution-affiliated party has met the applicable standard of conduct provided by law for indemnification in connection with such action or proceeding.
In the event that a majority of the members of the board of directors are named as respondents in an administrative proceeding or civil action and request indemnification, the remaining members of the board may authorize independent legal counsel to review the indemnification request and provide the remaining members of the board with a written opinion of counsel as to whether the conditions delineated in the first four paragraphs of this Section 5 of Article VIII have been met. If independent legal counsel opines that said conditions have been met, the remaining members of the board of directors may rely on such opinion in authorizing the requested indemnification.
In the event that all of the members of the board of directors are named as respondents in an administrative proceeding or civil action and request indemnification, the board shall authorize independent legal counsel to review the indemnification request and provide the board with a written opinion of counsel as to whether the conditions delineated in the first four paragraphs of this Section 5 of Article VIII have been met. If legal counsel opines that said conditions have been met, the board of directors may rely on such opinion in authorizing the requested indemnification.
To the extent permitted under applicable law, the rights of indemnification and to the advancement of expenses provided in these articles of association (a) shall be available with respect to events occurring prior to the adoption of these bylaws, (b) shall continue to exist after any restrictive amendment of these bylaws with respect to events occurring prior to such amendment, (c) may be interpreted on the basis of applicable law in effect at the time of the occurrence of the event or events giving rise to the action or proceeding, or on the basis of applicable law in effect at the time such rights are claimed, and (d) are in the nature of contract rights which may be enforced in any court of competent jurisdiction as if the association and the institution-affiliated party (or his or her heirs, executors or administrators) for whom such rights are sought were parties to a separate written agreement.
The rights of indemnification and to the advancement of expenses provided in these bylaws shall not, to the extent permitted under applicable law, be deemed exclusive of any other rights to which any such institution-affiliated party (or his or her heirs, executors or administrators) may now or hereafter be otherwise entitled whether contained in the association’s articles of association, these bylaws, a resolution
– 30 –
of stockholders, a resolution of the board of directors, or an agreement providing such indemnification, the creation of such other rights being hereby expressly authorized. Without limiting the generality of the foregoing, the rights of indemnification and to the advancement of expenses provided in these bylaws shall not be deemed exclusive of any rights, pursuant to statute or otherwise, of any such institution-affiliated party (or of his or her heirs, executors or administrators) in any such action or proceeding to have assessed or allowed in his or her favor, against the association or otherwise, his or her costs and expenses incurred therein or in connection therewith or any part thereof.
If this Section 5 of Article VIII or any part hereof shall be held unenforceable in any respect by a court of competent jurisdiction, it shall be deemed modified to the minimum extent necessary to make it enforceable, and the remainder of this Section 5 of Article VIII shall remain fully enforceable.
The association may, upon affirmative vote of a majority of its board of directors, purchase insurance to indemnify its institution-affiliated parties to the extent that such indemnification is allowed in these bylaws; provided, however, that no such insurance shall include coverage for a final order assessing civil money penalties against such persons by a bank regulatory agency. Such insurance may, but need not, be for the benefit of all institution- affiliated parties.
– 31 –
ARTICLE IX
Inspection and Amendments
Section 1. Inspection. A copy of the bylaws of the association, with all amendments, shall at all times be kept in a convenient place at the main office of the association, and shall be open for inspection to all shareholders during banking hours.
Section 2. Amendments. The bylaws of the association may be amended, altered or repealed, at any regular meeting of the board of directors, by a vote of a majority of the total number of the directors except as provided below, and provided that the following language accompany any such change.
I, , certify that: (1) I am the duly constituted (secretary or treasurer) of and secretary of its board of directors, and as such officer am the official custodian of its records; (2) the foregoing bylaws are the bylaws of the association, and all of them are now lawfully in force and effect.
I have hereunto affixed my official signature on this day of .
_____________________________
(Secretary or Treasurer)
The association’s shareholders may amend or repeal the bylaws even though the bylaws also may be amended or repealed by the board of directors.
EXHIBIT 6
Section 321(b) Consent
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as amended, Wilmington Trust, National Association hereby consents that reports of examinations by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon requests therefor.
| WILMINGTON TRUST, NATIONAL ASSOCIATION | ||||||
| Dated: March 26, 2021 | By: | /s/ Sarah Vilhauer | ||||
| Name: Sarah Vilhauer | ||||||
| Title: Banking Officer | ||||||
EXHIBIT 7
REPORT OF CONDITION
WILMINGTON TRUST, NATIONAL ASSOCIATION
As of the close of business on December 31, 2020
| ASSETS | Thousands of Dollars | |||
| Cash and balances due from depository institutions: |
6,024,491 | |||
| Securities: |
5,706 | |||
| Federal funds sold and securities purchased under agreement to resell: |
0 | |||
| Loans and leases held for sale: |
0 | |||
| Loans and leases net of unearned income, allowance: |
112,516 | |||
| Premises and fixed asset |
25,764 | |||
| Other real estate owned: |
360 | |||
| Investments in unconsolidated subsidiaries and associated companies: |
0 | |||
| Direct and indirect investments in real estate ventures: |
0 | |||
| Intangible assets: |
567 | |||
| Other assets: |
60,988 | |||
| Total Assets: |
6,230,392 | |||
| LIABILITIES | Thousands of Dollars | |||
| Deposits |
5,525,170 | |||
| Federal funds purchased and securities sold under agreements to repurchase |
0 | |||
| Other borrowed money: |
0 | |||
| Other Liabilities: |
74,904 | |||
| Total Liabilities |
5,600,074 | |||
| EQUITY CAPITAL | Thousands of Dollars | |||
| Common Stock |
1,000 | |||
| Surplus |
407,887 | |||
| Retained Earnings |
221,713 | |||
| Accumulated other comprehensive income |
(282 | ) | ||
| Total Equity Capital |
630,318 | |||
| Total Liabilities and Equity Capital |
6,230,392 | |||