EXHIBIT 4.18
FOURTH SUPPLEMENTAL SENIOR SUBORDINATED NOTE INDENTURE
FOURTH SUPPLEMENTAL SENIOR SUBORDINATED NOTE INDENTURE (this
"Supplemental Senior Subordinated Note Indenture"), dated as of February 16,
2000 among Peabody Natural Gas, LLC, a Delaware limited liability company (the
"Guaranteeing Subsidiary"), 'a subsidiary of Peabody Holding Company, Inc. (or
its permitted successor), a New York 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
(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:
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(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) 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.
(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 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.
(e) 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.
(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.
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(g) 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.
(h) 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.
(i) 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
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(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 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 other-wise, 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 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 Officers' 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
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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 I 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.
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.
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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.
Dated: February 16, 2000
PEABODY NATURAL GAS, LLC
By: /S/ X. X. Xxxxxx
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Name: X. X. Xxxxxx
Title: Vice President & Treasurer
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