EXHIBIT 4.21
SIXTH SUPPLEMENTAL SENIOR NOTE INDENTURE
SIXTH SUPPLEMENTAL SENIOR NOTE INDENTURE (this "Supplemental Senior
Note Indenture"), dated as of February 11, 2002 among THOROUGHBRED GENERATING
COMPANY, LLC, a Delaware limited liability company (the "Guaranteeing
Subsidiary"), a subsidiary of Peabody Energy Corporation (formerly P&L Coal
Holdings Corporation) (or its permitted successor), a Delaware corporation (the
"Company") the Company, the other Senior Note Guarantors (as defined in the
Senior Note Indenture referred to herein) and State Street Bank and Trust
Company, as Senior Note Trustee under the Senior Note Indenture referred to
below (the "Senior Note Trustee").
WITNESSETH
WHEREAS, the Company has heretofore executed and delivered to the
Senior Note Trustee a Senior Note Indenture (the "Senior Note Indenture"), dated
as of May 18, 1998 providing for the issuance of an aggregate principal amount
of up to $550.0 million of 8-7/8% Senior Notes due 2008 (the "Senior Notes");
WHEREAS, the Senior Note Indenture provides that under certain
circumstances the Guaranteeing Subsidiary shall execute and deliver to the
Senior Note Trustee a supplemental Senior Note Indenture pursuant to which the
Guaranteeing Subsidiary shall unconditionally guarantee all of the Company's
Obligations under the Senior Notes and the Senior Note Indenture on the terms
and conditions set forth herein (the "Senior Subsidiary Guarantee"); and
WHEREAS, pursuant to Section 9.01 of the Senior Note Indenture, the
Senior Note Trustee is authorized to execute and deliver this Supplemental
Senior Note Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Guaranteeing Subsidiary and the Senior Note Trustee mutually covenant and agree
for the equal and ratable benefit of the Holders of the Senior Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Senior Note
Indenture.
2. AGREEMENT TO GUARANTEE. The Guaranteeing Subsidiary hereby
agrees as follows:
(a) Along with all Senior Note Guarantors named in the
Senior Note Indenture, to jointly and severally
Guarantee to each Holder of a Senior Note
authenticated and delivered by the Senior Note
Trustee and to the Senior Note Trustee and its
successors and assigns, irrespective of the validity
and enforceability of the Senior
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Note Indenture, the Senior Notes or the obligations
of the Company hereunder or thereunder, that:
(i) the principal of and interest on the Senior
Notes will be promptly paid in full when
due, whether at maturity, by acceleration,
redemption or otherwise, and interest on the
overdue principal of and interest on the
Senior Notes, if any, if lawful, and all
other obligations of the Company to the
Holders or the Senior Note Trustee hereunder
or thereunder will be promptly paid in full
or performed, all in accordance with the
terms hereof and thereof; and
(ii) in case of any extension of time of payment
or renewal of any Senior Notes or any of
such other obligations, that same will be
promptly paid in full when due or performed
in accordance with the terms of the
extension or renewal, whether at stated
maturity, by acceleration or otherwise.
Failing payment when due of any amount so
guaranteed or any performance so guaranteed
for whatever reason, the Senior Note
Guarantors shall be jointly and severally
obligated to pay the same immediately.
(b) The obligations hereunder shall be unconditional,
irrespective of the validity, regularity or
enforceability of the Senior Notes or the Senior Note
Indenture, the absence of any action to enforce the
same, any waiver or consent by any Holder of the
Senior Notes with respect to any provisions hereof or
thereof, the recovery of any judgment against the
Company, any action to enforce the same or any other
circumstance which might otherwise constitute a legal
or equitable discharge or defense of a Senior Note
Guarantor.
(c) The following is hereby waived: diligence,
presentment, demand of payment, filing of claims with
a court in the event of insolvency or bankruptcy of
the Company, any right to require a proceeding first
against the Company, protest, notice and all demands
whatsoever.
(d) This Senior Subsidiary Guarantee shall not be
discharged except by complete performance of the
obligations contained in the Senior Notes and the
Senior Note Indenture.
(e) If any Holder or the Senior Note Trustee is required
by any court or otherwise to return to the Company,
the Senior Note Guarantors, or any custodian, Senior
Note Trustee, liquidator or other similar official
acting in relation to either the Company or the
Senior Note Guarantors, any amount paid by either to
the Senior Note Trustee
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or such Holder, this Senior Subsidiary Guarantee, to
the extent theretofore discharged, shall be
reinstated in full force and effect.
(f) The Guaranteeing Subsidiary shall not be entitled to
any right of subrogation in relation to the Holders
in respect of any obligations guaranteed hereby until
payment in full of all obligations guaranteed hereby.
(g) As between the Senior Note Guarantors, on the one
hand, and the Holders and the Senior Note Trustee, on
the other hand, (x) the maturity of the obligations
guaranteed hereby may be accelerated as provided in
Article 6 of the Senior Note Indenture for the
purposes of this Senior Subsidiary Guarantee,
notwithstanding any stay, injunction or other
prohibitions preventing such acceleration in respect
of the obligations guaranteed hereby, and (y) in the
event of any declaration of acceleration of such
obligations as provided in Article 6 of the Senior
Note Indenture, such obligations (whether or not due
and payable) shall forthwith become due and payable
by the Senior Note Guarantors for the purpose of this
Senior Subsidiary Guarantee.
(h) The Senior Note Guarantors shall have the right to
seek contribution from any non-paying Senior Note
Guarantor so long as the exercise of such right does
not impair the rights of the Holders under the Senior
Subsidiary Guarantee.
(i) Pursuant to Section 10.04 of the Senior Note
Indenture, after giving effect to any maximum amount
and any other contingent and fixed liabilities that
are relevant under any applicable Bankruptcy or
fraudulent conveyance laws, and after giving effect
to any collections from, rights to receive
contribution from or payments made by or on behalf of
any other Senior Note Guarantor in respect of the
obligations of such other Senior Note Guarantor under
Article 10 of the Senior Note Indenture shall result
in the obligations of such Senior Note Guarantor
under its Senior Subsidiary Guarantee not
constituting a fraudulent transfer or conveyance.
3. EXECUTION AND DELIVERY. Each Guaranteeing Subsidiary agrees
that the Senior Subsidiary Guarantees shall remain in full force and effect
notwithstanding any failure to endorse on each Senior Note a notation of such
Senior Subsidiary Guarantee.
4. GUARANTEEING SUBSIDIARY MAY CONSOLIDATE, ETC. ON CERTAIN
TERMS.
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(a) The Guaranteeing Subsidiary may not consolidate with
or merge with or into (whether or not such Senior
Note Guarantor is the surviving Person) another
corporation, Person or entity whether or not
affiliated with such Senior Note Guarantor unless:
(i) subject to Section 10.04 of the Senior Note
Indenture, the Person formed by or surviving
any such consolidation or merger (if other
than a Senior Note Guarantor or the Company)
unconditionally assumes all the obligations
of such Senior Note Guarantor, pursuant to a
supplemental Senior Note Indenture in form
and substance reasonably satisfactory to the
Senior Note Trustee, under the Senior Notes,
the Senior Note Indenture and the Senior
Subsidiary Guarantee on the terms set forth
herein or therein; and
(ii) immediately after giving effect to such
transaction, no Default or Event of Default
exists.
(b) In case of any such consolidation, merger, sale or
conveyance and upon the assumption by the successor
corporation, by supplemental Senior Note Indenture,
executed and delivered to the Senior Note Trustee and
satisfactory in form to the Senior Note Trustee, of
the Senior Subsidiary Guarantee endorsed upon the
Senior Notes and the due and punctual performance of
all of the covenants and conditions of the Senior
Note Indenture to be performed by the Senior Note
Guarantor, such successor corporation shall succeed
to and be substituted for the Senior Note Guarantor
with the same effect as if it had been named herein
as a Senior Note Guarantor. Such successor
corporation thereupon may cause to be signed any or
all of the Senior Subsidiary Guarantees to be
endorsed upon all of the Senior Notes issuable
hereunder which theretofore shall not have been
signed by the Company and delivered to the Senior
Note Trustee. All the Senior Subsidiary Guarantees so
issued shall in all respects have the same legal rank
and benefit under the Senior Note Indenture as the
Senior Subsidiary Guarantees theretofore and
thereafter issued in accordance with the terms of the
Senior Note Indenture as though all of such Senior
Subsidiary Guarantees had been issued at the date of
the execution hereof.
(c) Except as set forth in Articles 4 and 5 of the Senior
Note Indenture, and notwithstanding clauses (a) and
(b) above, nothing contained in the Senior Note
Indenture or in any of the Senior Notes shall prevent
any consolidation or merger of a Senior Note
Guarantor with or into the Company or another Senior
Note Guarantor, or shall prevent any sale or
conveyance of the property of a Senior
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Note Guarantor as an entirety or substantially as an
entirety to the Company or another Senior Note
Guarantor.
5. RELEASES.
(a) In the event of a sale or other disposition of all of
the assets of any Senior Note Guarantor, by way of
merger, consolidation or otherwise, or a sale or
other disposition of all to the capital stock of any
Senior Note Guarantor, then such Senior Note
Guarantor (in the event of a sale or other
disposition, by way of merger, consolidation or
otherwise, of all of the capital stock of such Senior
Note Guarantor) or the corporation acquiring the
property (in the event of a sale or other disposition
of all or substantially all of the assets of such
Senior Note Guarantor) will be released and relieved
of any obligations under its Senior Subsidiary
Guarantee; provided that the Net Proceeds of such
sale or other disposition are applied in accordance
with the applicable provisions of the Senior Note
Indenture, including without limitation Section 4.10
of the Senior Note Indenture. Upon delivery by the
Company to the Senior Note Trustee of an Officer's
Certificate and an Opinion of Counsel to the effect
that such sale or other disposition was made by the
Company in accordance with the provisions of the
Senior Note Indenture, including without limitation
Section 4.10 of the Senior Note Indenture, the Senior
Note Trustee shall execute any documents reasonably
required in order to evidence the release of any
Senior Note Guarantor from its obligations under its
Senior Subsidiary Guarantee.
(b) Any Senior Note Guarantor not released from its
obligations under its Senior Subsidiary Guarantee
shall remain liable for the full amount of principal
of and interest on the Senior Notes and for the other
obligations of any Senior Note Guarantor under the
Senior Note Indenture as provided in Article 10 of
the Senior Note Indenture.
6. NO RECOURSE AGAINST OTHERS. No past, present or future
director, officer, employee, incorporator, stockholder or agent of the
Guaranteeing Subsidiary, as such, shall have any liability for any obligations
of the Company or any Guaranteeing Subsidiary under the Senior Notes, any Senior
Subsidiary Guarantees, the Senior Note Indenture or this Supplemental Senior
Note Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of the Senior Notes by accepting a
Senior Note waives and releases all such liability. The waiver and release are
part of the consideration for issuance of the Senior Notes. Such waiver may not
be effective to waive liabilities under the federal securities laws and it is
the view of the Commission that such a waiver is against public policy.
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7. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW
YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL SENIOR NOTE
INDENTURE BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW
TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.
8. COUNTERPARTS. The parties may sign any number of copies of
this Supplemental Senior Note Indenture. Each signed copy shall be an original,
but all of them together represent the same agreement.
9. EFFECT OF HEADINGS. The Section headings herein are for
convenience only and shall not affect the construction hereof.
10. THE SENIOR NOTE TRUSTEE. The Senior Note Trustee shall not be
responsible in any manner whatsoever for or in respect of the validity or
sufficiency of this Supplemental Senior Note Indenture or for or in respect of
the recitals contained herein, all of which recitals are made solely by the
Guaranteeing Subsidiary and the Company.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Senior Note Indenture to be duly executed and attested, all as of the date first
above written.
THOROUGHBRED GENERATING COMPANY, LLC
By: /s/ Xxxxxx X. Xxxxxx
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Name: X. X. Xxxxxx
Title: Vice President & Treasurer
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