EXHIBIT 3.179
LIMITED LIABILITY COMPANY AGREEMENT
OF
THOROUGHBRED MINING COMPANY, LLC
THIS LIMITED LIABILITY COMPANY AGREEMENT ("Agreement") of THOROUGHBRED
MINING COMPANY, LLC (the "LLC"), is dated as of January 23, 2002 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 March 7,
2002; 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 March 7, 2002.
1.2 NAME OF LLC
The name of the LLC as of the date of this Agreement
is and shall continue to be "Thoroughbred Mining Company, 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 such 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
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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 acquire,
lease, sell or otherwise dispose of and/or hold coal, surface and other
minerals, (ii) invest in, develop and/or operate various power
generating facilities, coal mines, other energy related concerns and
related transactions, (iii) to undertake any lawful transactions and
engage in any lawful activity incidental to or in furtherance of the
foregoing purposes or otherwise related to the energy business; and
(iv) 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.
2
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 manager, director, 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.
3
6. MANAGEMENT
6.1 MEMBER MANAGEMENT
Except as otherwise expressly provided in this
Agreement, the business affairs of the LLC shall be managed and
controlled by the Member, and the Member shall have fully, 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 action 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
and 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, 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.
4
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
5
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.
7.7 INSURANCE
The LLC may purchase and maintain insurance of a kind
normal and customary in the industry in which the LLC conducts business
on behalf of any Indemnitee against any liability asserted against an
Indemnitee and incurred by an Indemnitee in such capacity, or arising
out of such Indemnitee's status as aforesaid, whether or not the LLC
would have the power to indemnify such Indemnitee against such
liability under this SECTION 7.
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
6
(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 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/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President & Treasurer
7
