EXHIBIT 4.25
SEVENTH SUPPLEMENTAL SENIOR SUBORDINATED NOTE INDENTURE
SEVENTH SUPPLEMENTAL SENIOR SUBORDINATED NOTE INDENTURE (this
"Supplemental Senior Subordinated Note Indenture"), dated as of August 14, 2002,
among BEAVER DAM COAL COMPANY, a Delaware corporation (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:
(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.
(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.
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(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.
(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
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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 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
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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
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
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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.
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.
BEAVER DAM COAL COMPANY
/s/ XXXXXX X. XXXXXX
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Name: X. X. Xxxxxx
Title: Vice President
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