EXHIBIT 4.188
LIMITED LIABILITY COMPANY AGREEMENT
OF
PEABODY POWERTREE INVESTMENTS, LLC
THIS LIMITED LIABILITY COMPANY AGREEMENT ("Agreement") of
PEABODY POWERTREE INVESTMENTS, LLC, (the "LLC"), is dated as of June 9, 2003 and
made by Peabody Energy Corporation, a Delaware Corporation (the "Member").
WITNESSETH:
WHEREAS, the LLC is a limited liability company formed under
the Delaware Limited Liability Company Act (the "Delaware LLC Act") pursuant to
a Certificate of Formation filed with the Delaware Secretary of State on
November 7, 1996; and
WHEREAS, the Member is the sole member of the LLC.
NOW, THEREFORE, the Member hereby declares as follows:
1. LLC FORMATION, NAME, PLACE OF BUSINESS
1.1 FORMATION OF LLC; CERTIFICATE OF FORMATION
The Member of the LLC hereby acknowledges the formation of the
LLC as a limited liability company pursuant to the Delaware LLC Act by virtue of
the filing of a Certificate of Formation with the Delaware Secretary of State on
November 7, 1996; and
1.2 NAME OF LLC
The name of the LLC as of the date of this Agreement is and
shall continue to be "Peabody PowerTree Investments, LLC". The business of the
LLC may be conducted under any other name that is permitted by the Delaware LLC
Act and selected by the Member. The Member promptly shall execute, file, and
record any assumed or fictitious name certificates required by the laws of the
State of Delaware or any state in which the LLC conducts business and shall take
such other action as Member determines is required by or advisable under the
laws of the State of Delaware, or any other state in which the LLC conducts
business, to use the name or names under which the LLC conducts business.
1.3 PLACE OF BUSINESS
The LLC's principal place of business shall be St. Louis,
Missouri. The Member may establish and maintain such other offices and
additional places of business of the LLC, either within or without the State of
Delaware, or close any office or place of business of the LLC, as he or she
deems appropriate.
1.4 REGISTERED AGENT
The street address of the initial registered office of the LLC
shall be:
The Corporation Trust Company
Corporation Trust Center
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and the LLC's registered agent at such address shall be Corporation Service
Company. The Member may from time to time appoint a new resident agent for the
LLC.
2. PURPOSES AND POWERS OF LLC
2.1 PURPOSES
The purposes of the LLC shall be (i) to invest in, develop
and/or operate various power generating facilities, coal mines and other
energy-related concerns, (ii) to undertake any lawful transactions and engage in
any lawful activity incidental to or in furtherance of the foregoing purpose or
otherwise related to the energy business; and (iii) as agreed by the Member, to
engage in any other lawful business, purpose or activity permitted by the
Delaware LLC Act.
2.2 POWERS
The LLC shall have all the powers and privileges as are
necessary or convenient to the conduct, promotion, or attainment of the
business, purposes or activities of the LLC.
3. TERM OF LLC
The LLC commenced on the date upon which the Certificate of
Formation was duly filed with the Delaware Secretary of State and shall continue
until the dissolution of the LLC as provided by the Delaware LLC Act.
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4. LIABILITY OF MEMBER
Except as otherwise provided in the Delaware LLC Act, the
debts, obligations and liabilities of the LLC, whether arising in contract, tort
or otherwise, shall be solely the debts, obligations and liabilities of the LLC,
and neither the Member nor any director, manager, officer, employee,
shareholder, controlling person or agent of the LLC or the Member shall be
obligated personally for any such debt, obligation or liability of the LLC
solely by reason of being a member or a member or a director, manager, officer,
employee, shareholder, controlling person or agent of the LLC or the Member. The
failure of the LLC to observe any formalities or requirements relating to the
exercise of its power or management of its business or affairs under the
Delaware LLC Act or this Agreement shall not be grounds for imposing personal
liability on the Member, or any director, manager, officer, employee,
shareholder, controlling person or agent of the LLC or the Member for
liabilities of the LLC.
5. CAPITALIZATION, MEMBERSHIP INTEREST AND DISTRIBUTIONS OF CASH FLOW AND
CERTAIN PROCEEDS.
5.1 CAPITALIZATION
Concurrent with the execution of this Agreement, the Member shall make
a $1,000 capital contribution to the LLC, in cash.
5.2 NO ADDITIONAL CAPITAL CONTRIBUTIONS
The Member shall have no obligation to make additional capital
contributions to the LLC.
5.3 MEMBERSHIP INTEREST
The Member shall own one hundred percent (100%) of the
membership interests in the LLC, and all profits and losses shall be allocated
to the Member.
5.4 DISTRIBUTIONS
The Member shall decide whether and in what amounts the proceeds
received by the LLC shall be distributed. All such proceeds, if any, shall be
distributed one hundred percent (100%) to the Member.
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6. MANAGEMENT
6.1 MEMBER MANAGEMENT
Except as otherwise expressly provided in this Agreement, the
business and affairs of the LLC shall be managed and controlled by the Member,
and the Member shall have full, exclusive, and complete authority and discretion
to make all the decisions affecting the business and affairs of the LLC, and to
take all such actions as the Member deems necessary or appropriate to accomplish
the purposes of the LLC; and any actions taken by the Member shall be binding on
the LLC.
7. INDEMNIFICATION OF REPRESENTATIVES, COMMITTEE MEMBERS AND EMPLOYEES
7.1 INDEMNIFICATION
The LLC shall indemnify and hold harmless the Member, each
director, Manager, officer, employee, shareholder, controlling person, agent and
representative of the LLC and of the Member (individually, in each case, an
"Indemnitee") to the fullest extent permitted by law from and against any and
all losses, claims, demands, costs, damages, liabilities (joint or several),
reasonable expenses of any nature (including reasonable attorneys' fees and
disbursements), judgments, fines, settlements, and other amounts arising from
any and all claims, causes of action, demands, actions, suits, or proceedings
(unless asserted by the LLC against the Indemnitee), whether civil, criminal,
administrative or investigative, in which the Indemnitee may be involved, or
threatened to be involved, as a party or otherwise, arising out of or incidental
to the business or activities of or relating to the LLC (a "Claim"), regardless
of whether such Indemnitee continues to be a Member or a director, manager,
officer, employee, shareholder, controlling person, agent or representative of
the LLC or the Member at the time any such liability or expense is paid or
incurred, 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; provided that all claims for indemnification by an
Indemnitee shall be made only against and shall be limited to the assets of the
LLC and no Indemnitee shall have recourse against the Member with respect to any
such Claim. The termination of any action, suit, or proceeding by judgment,
order, settlement, or conviction, or upon a plea of nolo contendre or its
equivalent shall not, in and of itself, create a presumption or otherwise
constitute evidence that the Indemnitee's conduct did constitute fraud, gross
negligence, or willful misconduct.
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7.2 EXPENSES
Expenses incurred by an Indemnitee in defending any Claim
subject to this SECTION 7 shall, from time to time, upon request by the
Indemnitee, be advanced by the LLC prior to the final disposition of such Claim
upon receipt by the LLC of an undertaking by or on behalf of the Indemnitee to
repay such amount, together with interest on any such advance or advances at the
rate equal to two percentage points above the "Federal short-term rate" as
defined in the Internal Revenue Code section 1274(d)(1)(C)(i) or the maximum
rate permitted under applicable law, promptly upon (and in no event more than
ten days after) a determination in a judicial proceeding or a binding
arbitration that such Indemnitee is not entitled to be indemnified as authorized
in this SECTION 7.
7.3 OTHER RIGHTS
The indemnification provided by this SECTION 7 shall be in
addition to any other rights to which an Indemnitee may be entitled under any
agreement or as approved by the Member, as a matter of law or equity, or
otherwise, both as to an action in such Indemnitee's capacity as the Member or
as a director, manager, officer, employee, shareholder, controlling person,
agent or representative of the LLC or the Member, and as to an action in another
capacity, and shall continue as to an Indemnitee who has ceased to serve in such
capacity with respect to those periods during which such Indemnitee served, and
shall inure to the benefit of the heirs, successors, assigns, and administrators
of the Indemnitee.
7.4 NOTICE
Promptly after receipt of notice of the commencement of any
Claim, an Indemnitee will, if indemnification in respect thereof is to be sought
against the LLC under this SECTION 7, notify the LLC of the initiation thereof,
but the omission so to notify the LLC will not relieve the LLC from any
liability that the LLC may have to such Indemnitee otherwise than under this
SECTION 7, or under this SECTION 7 except to the extent that the LLC is
adversely affected by such lack of notice.
7.5 COUNSEL
The LLC shall have the right to undertake, by counsel or other
representatives of its own choosing, the defense or other resolution of any
Claim. In the event that the LLC shall elect not to undertake such defense or
other resolution or within a reasonable time after notice of such Claim from an
Indemnitee, the LLC shall fail to defend or otherwise resolve such Claim, such
Indemnitee (upon further written notice to the LLC) shall have the right to
undertake the defense, compromise, or settlement of such
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Claim, by counsel or other representatives of its own choosing, on behalf of and
for the account and risk of the LLC.
7.6 OTHER PERSONS
The provisions of this SECTION 7 are for the benefit of the
Indemnitees and shall not be deemed to create any rights for the benefit of any
other person or entity.
8. DISSOLUTION AND LIQUIDATION
8.1 EFFECT OF DISSOLUTION
Upon dissolution, the LLC shall cease carrying on its business
but shall not terminate until the winding up of the affairs of the LLC is
completed, the assets of the LLC shall have been distributed as provided below
and a Certificate of Cancellation of the LLC under the Delaware LLC Act has been
filed with the Secretary of State of the State of Delaware.
8.2 LIQUIDATION UPON DISSOLUTION
Upon the dissolution of the LLC, sole and plenary authority to
effectuate the liquidation of the assets of the LLC shall be vested in the
Member, which shall have full power and authority to sell, assign and encumber
any and all of the LLC's assets and to wind up and liquidate the affairs of the
LLC in an orderly and business-like manner. The proceeds of liquidation of the
assets of the LLC distributable upon a dissolution and winding up of the LLC
shall be applied in the following order of priority:
(i) first, to the creditors of the LLC, which may include
the Member as a creditor, in the order of priority provided by law, in
satisfaction of all liabilities and obligations of the LLC (or any nature
whatsoever, including, without limitation, fixed or contingent, matured or
unmatured, legal or equitable, secured or unsecured), whether by payment or the
making of reasonable provisions for payment thereof; and
(ii) thereafter, one hundred percent (100%) to the Member.
8.3 WINDING UP AND CERTIFICATE OF CANCELLATION
The winding up of the LLC shall be completed when all of its
debts, liabilities, and obligations have been paid and discharged or
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reasonably adequate provisions therefor has been made, and all of the remaining
property and assets of the LLC have been distributed to the Member. Upon the
completion of the winding up of the LLC, a Certificate of Cancellation of the
LLC shall be filed with the Delaware Secretary of State.
9. AMENDMENT
This Agreement may be amended or modified by a written
instrument executed by the Member.
10. GOVERNING LAW
This Agreement shall be governed and construed in accordance
with the laws of the State of Delaware without regard to any applicable
conflicts of law.
IN WITNESS WHEREOF, the undersigned has duly executed this
Agreement, as of the day and year first herein above set forth.
PEABODY ENERGY CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President - Legal Affairs
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