EXHIIBT 4.22
SIXTH SUPPLEMENTAL SENIOR SUBORDINATED NOTE INDENTURE
SIXTH SUPPLEMENTAL SENIOR SUBORDINATED NOTE INDENTURE (this
"Supplemental Senior Subordinated 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 Subordinated Note Guarantors (as defined in the Senior Subordinated Note
Indenture referred to herein) and State Street Bank and Trust Company, as Senior
Subordinated Note Trustee under the Senior Subordinated Note Indenture referred
to below (the "Senior Subordinated Note Trustee").
WITNESSETH
WHEREAS, the Company has heretofore executed and delivered to the
Senior Subordinated Note Trustee a Senior Subordinated Note Indenture (the
"Senior Subordinated Note Indenture"), dated as of May 18, 1998 providing for
the issuance of an aggregate principal amount of up to $650.0 million of 9-5/8%
Senior Subordinated Notes due 2008 (the "Senior Subordinated Notes");
WHEREAS, the Senior Subordinated Note Indenture provides that under
certain circumstances the Guaranteeing Subsidiary shall execute and deliver to
the Senior Subordinated Note Trustee a supplemental Senior Subordinated Note
Indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally
guarantee all of the Company's Obligations under the Senior Subordinated Notes
and the Senior Subordinated Note Indenture on the terms and conditions set forth
herein (the "Subordinated Subsidiary Guarantee"); and
WHEREAS, pursuant to Section 9.01 of the Senior Subordinated Note
Indenture, the Senior Subordinated Note Trustee is authorized to execute and
deliver this Supplemental Senior Subordinated 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 Subordinated Note Trustee mutually
covenant and agree for the equal and ratable benefit of the Holders of the
Senior Subordinated Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Senior Subordinated
Note Indenture.
2. AGREEMENT TO GUARANTEE. The Guaranteeing Subsidiary hereby
agrees as follows:
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(a) Along with all Senior Subordinated Note Guarantors
named in the Senior Subordinated Note Indenture, to
jointly and severally Guarantee to each Holder of a
Senior Subordinated Note authenticated and delivered
by the Senior Subordinated Note Trustee and to the
Senior Subordinated Note Trustee and its successors
and assigns, irrespective of the validity and
enforceability of the Senior Subordinated Note
Indenture, the Senior Subordinated Notes or the
obligations of the Company hereunder or thereunder,
that:
(i) the principal of and interest on the Senior
Subordinated 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 Subordinated Notes,
if any, if lawful, and all other obligations
of the Company to the Holders or the Senior
Subordinated 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 Subordinated 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 Subordinated
Note Guarantors shall be jointly and
severally obligated to pay the same
immediately.
(b) Notwithstanding the foregoing, it is agreed and
acknowledged that the Subordinated Subsidiary
Guarantee hereunder is subordinated to the Senior
Debt of such Subordinated Senior Note Guarantor as
set forth in Article 10 and in Article 11 of the
Senior Subordinated Note Indenture.
(c) The obligations hereunder shall be unconditional,
irrespective of the validity, regularity or
enforceability of the Senior Subordinated Notes or
the Senior Subordinated Note Indenture, the absence
of any action to enforce the same, any waiver or
consent by any Holder of the Senior Subordinated
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
Subordinated Note Guarantor.
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(d) 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.
(e) This Subordinated Subsidiary Guarantee shall not be
discharged except by complete performance of the
obligations contained in the Senior Subordinated
Notes and the Senior Subordinated Note Indenture.
(f) If any Holder or the Senior Subordinated Note Trustee
is required by any court or otherwise to return to
the Company, the Senior Subordinated Note Guarantors,
or any custodian, Senior Subordinated Note Trustee,
liquidator or other similar official acting in
relation to either the Company or the Senior
Subordinated Note Guarantors, any amount paid by
either to the Senior Subordinated Note Trustee or
such Holder, this Subordinated Subsidiary Guarantee,
to the extent theretofore discharged, shall be
reinstated in full force and effect.
(g) 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.
(h) As between the Senior Subordinated Note Guarantors,
on the one hand, and the Holders and the Senior
Subordinated 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
Subordinated Note Indenture for the purposes of this
Subordinated Subsidiary Guarantee, notwithstanding
any stay, injunction or other prohibition 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 Subordinated Note
Indenture, such obligations (whether or not due and
payable) shall forthwith become due and payable by
the Senior Subordinated Note Guarantors for the
purpose of this Subordinated Subsidiary Guarantee.
(i) The Senior Subordinated Note Guarantors shall have
the right to seek contribution from any non-paying
Senior Subordinated Note Guarantor so long as the
exercise of such right does not impair the rights of
the Holders under the Subordinated Subsidiary
Guarantee.
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(j) Pursuant to Section 11.02 of the Senior Subordinated
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 Subordinated Note Guarantor in
respect of the obligations of such other Senior
Subordinated Note Guarantor under Article 11 of the
Senior Subordinated Note Indenture shall result in
the obligations of such Senior Subordinated Note
Guarantor under its Subordinated Subsidiary Guarantee
not constituting a fraudulent transfer or conveyance.
3. EXECUTION AND DELIVERY. Each Guaranteeing Subsidiary agrees
that the Subordinated Subsidiary Guarantees shall remain in full force and
effect notwithstanding any failure to endorse on each Senior Subordinated Note a
notation of such Subordinated Subsidiary Guarantee.
4. GUARANTEEING SUBSIDIARY MAY CONSOLIDATE, ETC. ON CERTAIN
TERMS.
(a) The Guaranteeing Subsidiary may not consolidate with
or merge with or into (whether or not such Senior
Subordinated Note Guarantor is the surviving Person)
another corporation, Person or entity whether or not
affiliated with such Senior Subordinated Note
Guarantor unless:
(i) subject to Section 11.05 of the Senior
Subordinated Note Indenture, the Person
formed by or surviving any such
consolidation or merger (if other than a
Senior Subordinated Note Guarantor or the
Company) unconditionally assumes all the
obligations of such Senior Subordinated Note
Guarantor, pursuant to a supplemental Senior
Subordinated Note Indenture in form and
substance reasonably satisfactory to the
Senior Subordinated Note Trustee, under the
Senior Subordinated Notes, the Senior
Subordinated Note Indenture and the
Subordinated 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
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supplemental Senior Subordinated Note Indenture,
executed and delivered to the Senior Subordinated
Note Trustee and satisfactory in form to the Senior
Subordinated Note Trustee, of the Subordinated
Subsidiary Guarantee endorsed upon the Senior
Subordinated Notes and the due and punctual
performance of all of the covenants and conditions of
the Senior Subordinated Note Indenture to be
performed by the Senior Subordinated Note Guarantor,
such successor corporation shall succeed to and be
substituted for the Senior Subordinated Note
Guarantor with the same effect as if it had been
named herein as a Senior Subordinated Note Guarantor.
Such successor corporation thereupon may cause to be
signed any or all of the Subordinated Subsidiary
Guarantees to be endorsed upon all of the Senior
Subordinated Notes issuable hereunder which
theretofore shall not have been signed by the Company
and delivered to the Senior Subordinated Note
Trustee. All the Subordinated Subsidiary Guarantees
so issued shall in all respects have the same legal
rank and benefit under the Senior Subordinated Note
Indenture as the Subordinated Subsidiary Guarantees
theretofore and thereafter issued in accordance with
the terms of the Senior Subordinated Note Indenture
as though all of such Subordinated 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
Subordinated Note Indenture, and notwithstanding
clauses (a) and (b) above, nothing contained in the
Senior Subordinated Note Indenture or in any of the
Senior Subordinated Notes shall prevent any
consolidation or merger of a Senior Subordinated Note
Guarantor with or into the Company or another Senior
Subordinated Note Guarantor, or shall prevent any
sale or conveyance of the property of a Senior
Subordinated Note Guarantor as an entirety or
substantially as an entirety to the Company or
another Senior Subordinated Note Guarantor.
5. RELEASES.
(a) In the event of a sale or other disposition of all of
the assets of any Senior Subordinated Note Guarantor,
by way of merger, consolidation or otherwise, or a
sale or other disposition of all to the capital stock
of any Senior Subordinated Note Guarantor, then such
Senior Subordinated 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 Subordinated 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
Subordinated Note Guarantor) will be released and
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relieved of any obligations under its Subordinated
Subsidiary Guarantee; provided that the Net Proceeds
of such sale or other disposition are applied in
accordance with the applicable provisions of the
Senior Subordinated Note Indenture, including without
limitation Section 4.10 of the Senior Subordinated
Note Indenture. Upon delivery by the Company to the
Senior Subordinated 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 Subordinated Note Indenture, including without
limitation Section 4.10 of the Senior Subordinated
Note Indenture, the Senior Subordinated Note Trustee
shall execute any documents reasonably required in
order to evidence the release of any Senior
Subordinated Note Guarantor from its obligations
under its Subordinated Subsidiary Guarantee.
(b) Any Senior Subordinated Note Guarantor not released
from its obligations under its Subordinated
Subsidiary Guarantee shall remain liable for the full
amount of principal of and interest on the Senior
Subordinated Notes and for the other obligations of
any Senior Subordinated Note Guarantor under the
Senior Subordinated Note Indenture as provided in
Article 11 of the Senior Subordinated 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 Subordinated
Notes, any Subordinated Subsidiary Guarantees, the Senior Subordinated Note
Indenture or this Supplemental Senior Subordinated 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 Subordinated Notes by accepting a Senior
Subordinated Note waives and releases all such liability. The waiver and release
are part of the consideration for issuance of the Senior Subordinated 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.
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 SUBORDINATED
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 Subordinated Note Indenture. Each signed copy shall be
an original, but all of them together represent the same agreement.
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9. EFFECT OF HEADINGS. The Section headings herein are for
convenience only and shall not affect the construction hereof.
10. THE SENIOR SUBORDINATED NOTE TRUSTEE. The Senior Subordinated
Note Trustee shall not be responsible in any manner whatsoever for or in respect
of the validity or sufficiency of this Supplemental Senior Subordinated 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 Subordinated 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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