exv4w37



 





Exhibit 4.37




SEVENTEENTH SUPPLEMENTAL INDENTURE

(7 7/8% Senior Notes due 2026)




     Seventeenth Supplemental Indenture (this “Supplemental Indenture”), dated as of January 31,
2007, among the entities listed on Schedule I attached hereto (the “Guaranteeing
Subsidiaries”), each being a subsidiary of Peabody Energy Corporation (or its permitted successor),
a Delaware corporation (the “Company”), the Company, the other Subsidiary Guarantors (as defined in
the Indenture referred to herein) and U.S. Bank National Association, as Trustee under the
Indenture referred to below (the “Trustee”).



W I T N E S S E T H




     WHEREAS, the Company has heretofore executed and delivered to the Trustee the Eleventh
Supplemental Indenture dated as of October 12, 2006 to the Indenture dated as of March 19, 2004,
(the “Base Indenture,” and, together with the Eleventh Supplemental Indenture, the “Indenture”)
providing for the issuance of an unlimited amount of 7 7/8% Senior Notes due 2026 (the “Notes”); as
supplemented by the Fourteenth Supplemental Indenture dated as of November 10, 2006;



     WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiaries
shall execute and deliver to the Trustee a supplemental Indenture pursuant to which the
Guaranteeing Subsidiaries shall unconditionally guarantee all of the Company’s Obligations under
the Notes and the Indenture on the terms and conditions set forth herein (the “Subsidiary
Guarantee”); and



     WHEREAS, pursuant to Section 9.01 of the Base Indenture, the Trustee is authorized to execute
and deliver this Supplemental Indenture.



     NOW THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Guaranteeing Subsidiaries and the
Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes
as follows:



     1. Capitalized Terms. Capitalized terms used herein without definition shall have the
meanings assigned to them in the Indenture.



     2. Agreement to Guarantee. Each of the Guaranteeing Subsidiaries hereby agrees as
follows:




	 	(a)	 	Along with all Subsidiary Guarantors named in the Indenture, to jointly and
severally Guarantee to each Holder of a Note authenticated and delivered by the
Trustee and to the Trustee and its successors and assigns, irrespective of the
validity and enforceability of the Indenture, the Notes or the obligations of the
Company hereunder or thereunder, that:






	 	(i)	 	the principal of and interest on the 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 Notes, if any, if
lawful, and all other obligations of the Company to the Holders or the 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
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 Subsidiary 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 Notes or the Indenture, the absence of
any action to enforce the same, any waiver or consent by any Holder of the 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 Subsidiary
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 Subsidiary Guarantee shall not be discharged except by complete
performance of the obligations contained in the Notes and the Indenture.
	 
	 	(e)	 	If any Holder or the Trustee is required by any court or otherwise to
return to the Company, the Subsidiary Guarantors, or any custodian, Trustee,
liquidator or other similar official acting in relation to either the Company or the
Subsidiary Guarantors, any amount paid by either to the Trustee or such Holder, this
Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in
full force and effect.
	 
	 	(f)	 	The Guaranteeing Subsidiaries 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.
	 
	 	(g)	 	As between the Subsidiary Guarantors, on the one hand, and the Holders and
the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby
may be accelerated as provided in Article 6 of the Eleventh Supplemental Indenture for
the purposes of this 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 Eleventh Supplemental Indenture, such
obligations (whether or not due and payable) shall forthwith become due and payable by
the Subsidiary Guarantors for the purpose of this Subsidiary Guarantee.
	 
	 	(h)	 	The Subsidiary Guarantors shall have the right to seek contribution from
any non-paying Subsidiary Guarantor so long as the exercise of such right does not
impair the rights of the Holders under the Subsidiary Guarantee.
	 
	 	(i)	 	Pursuant to Section 9.04 of the Eleventh Supplemental 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 Subsidiary Guarantor in respect of the
obligations of such other Subsidiary Guarantor under Article 9 of the Eleventh
Supplemental




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	 	 	 	Indenture shall result in the obligations of such Subsidiary Guarantor under its
Subsidiary Guarantee not constituting a fraudulent transfer or conveyance.





     3. Execution and Delivery. Each of the Guaranteeing Subsidiaries agrees that the
Subsidiary Guarantees shall remain in full force and effect notwithstanding any failure to endorse
on each Note a notation of such Subsidiary Guarantee.



     4. Guaranteeing Subsidiary May Consolidate, Etc. on Certain Terms.




	 	(a)	 	The Guaranteeing Subsidiaries may not consolidate with or merge with or
into (whether or not such Subsidiary Guarantor is the surviving Person) another
corporation, Person or entity whether or not affiliated with such Subsidiary Guarantor
unless:






	 	(i)	 	subject to Section 9.04 of the Eleventh Supplemental Indenture, the
Person formed by or surviving any such consolidation or merger (if other than
a Subsidiary Guarantor or the Company) unconditionally assumes all the
obligations of such Subsidiary Guarantor, pursuant to a supplemental Indenture
in form and substance reasonably satisfactory to the Trustee, under the Notes,
the Indenture and the 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 Indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of the Subsidiary
Guarantee endorsed upon the Notes and the due and punctual performance of all of the
covenants and conditions of the Indenture to be performed by the Subsidiary Guarantor,
such successor corporation shall succeed to and be substituted for the Subsidiary
Guarantor with the same effect as if it had been named herein as a Subsidiary
Guarantor. Such successor corporation thereupon may cause to be signed any or all of
the Subsidiary Guarantees to be endorsed upon all of the Notes issuable hereunder
which theretofore shall not have been signed by the Company and delivered to the
Trustee. All the Subsidiary Guarantees so issued shall in all respects have the same
legal rank and benefit under the Indenture as the Subsidiary Guarantees theretofore
and thereafter issued in accordance with the terms of the Indenture as though all of
such Subsidiary Guarantees had been issued at the date of the execution hereof.
	 
	 	(c)	 	Except as set forth in Articles 4 and 5 of the Eleventh Supplemental
Indenture, and notwithstanding clauses (a) and (b) above, nothing contained in the
Indenture or in any of the Notes shall prevent any consolidation or merger of a
Subsidiary Guarantor with or into the Company or another Subsidiary Guarantor, or
shall prevent any sale or conveyance of the property of a Subsidiary Guarantor as an
entirety or substantially as an entirety to the Company or another Subsidiary
Guarantor.





     5. Releases.




	 	(a)	 	In the event of (i) the release or discharge of the Guarantee of the Credit
Agreement by a Subsidiary Guarantor, except a discharge or release by or as a result
of payment under such Guarantee or (ii) a sale or other disposition by way of such a
merger,




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	 	 	 	consolidation or otherwise, of all of the capital stock of any Subsidiary
Guarantor, then such Subsidiary Guarantor (in the event of a sale or other
disposition of all of the capital stock of such Subsidiary Guarantor) will be
released and relieved of any obligations under its Subsidiary Guarantee.






	 	(b)	 	Any Subsidiary Guarantor not released from its obligations under its
Subsidiary Guarantee shall remain liable for the full amount of principal of and
interest on the Notes and for the other obligations of any Subsidiary Guarantor under
the Indenture as provided in Article 9 of the Eleventh Supplemental Indenture.





     6. No Recourse Against Others. No past, present or future director, officer,
employee, incorporator, stockholder or agent of the Guaranteeing Subsidiaries, as such, shall have
any liability for any obligations of the Company or any Guaranteeing Subsidiaries under the Notes,
any Subsidiary Guarantees, the Indenture or this Supplemental Indenture or for any claim based on,
in respect of, or by reason of, such obligations or their creation. Each Holder of the Notes by
accepting a Note waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the 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 LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE
USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE.



     8. Counterparts. The parties may sign any number of copies of this Supplemental
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 Trustee. The Trustee shall not be responsible in any manner whatsoever for
or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of
the recitals contained herein, all of which recitals are made solely by the Guaranteeing
Subsidiaries and the Company.



[Signature page follows]




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     IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed and attested, all as of the date first above written.



	 	 	 	 	 	 	 
	Dated: January 31, 2007
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	Caseyville Dock Company, LLC	 	 
	 	 	Dyson Creek Mining Company, LLC	 	 
	 	 	El Segundo Coal Company, LLC	 	 
	 	 	El Segundo Coal Resources, LLC	 	 
	 	 	Midwest Coal Resources II, LLC	 	 
	 	 	Ohio County Coal Company, LLC	 	 
	 	 	Peabody International Services, Inc.	 	 
	 	 	Williams Fork Coal Company, LLC	 	 
	 	 	Williams Fork Coal Resources, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Walter L. Hawkins, Jr.
 

Walter L. Hawkins, Jr.
	 	 
	 

	 	Title:
	 	Vice President & Treasurer	 	 
	 
	 	 	 	 	 	 
	 	 	Peabody Energy Corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Walter L. Hawkins, Jr.
 

Walter L. Hawkins, Jr.
	 	 
	 

	 	Title:
	 	Vice President & Treasurer	 	 
	 
	 	 	 	 	 	 
	EXISTING SUBSIDIARY GUARANTORS:
	 	 	 	 	 	 
	 	 	Affinity Mining Company	 	 
	 	 	American Land Development, LLC	 	 
	 	 	American Land Holdings of Illinois, LLC	 	 
	 	 	American Land Holdings of Indiana, LLC	 	 
	 	 	American Land Holdings of Kentucky, LLC	 	 
	 	 	Appalachia Mine Services, LLC	 	 
	 	 	Appalachian Basin Oil & Gas, LLC	 	 
	 	 	Arclar Company, LLC	 	 
	 	 	Arid Operations Inc.	 	 
	 	 	Beaver Dam Coal Company	 	 
	 	 	Big Ridge, Inc.	 	 
	 	 	Big Sky Coal Company	 	 
	 	 	Black Beauty Coal Company, LLC	 	 
	 	 	Black Hills Mining Company, LLC	 	 
	 	 	Black Stallion Coal Company, LLC	 	 
	 	 	Black Walnut Coal Company	 	 
	 	 	Bluegrass Mine Services, LLC	 	 
	 	 	BTU Empire Corporation	 	 
	 	 	BTU Western Resources, Inc.	 	 
	 	 	Caballo Coal Company	 	 
	 	 	Central States Coal Reserves of Illinois, LLC	 	 
	 	 	Central States Coal Reserves of Indiana, LLC	 	 
	 	 	Central States Coal Reserves of Kentucky, LLC	 	 






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	 	 	Charles Coal Company, LLC	 	 
	 	 	Cleaton Coal Company	 	 
	 	 	Coal Properties, LLC	 	 
	 	 	Coal Reserve Holding Limited Liability Company No. 1	 	 
	 	 	Coal Reserve Holding Limited Liability Company No. 2	 	 
	 	 	COALSALES, LLC	 	 
	 	 	COALSALES II, LLC	 	 
	 	 	COALTRADE International, LLC	 	 
	 	 	COALTRADE, LLC	 	 
	 	 	Colony Bay Coal Company	 	 
	 	 	Colorado Coal Resources, LLC	 	 
	 	 	Colorado Yampa Coal Company	 	 
	 	 	Cook Mountain Coal Company, LLC	 	 
	 	 	Cottonwood Land Company	 	 
	 	 	Coulterville Coal Company, LLC

Cyprus Creek Land Company	 	 
	 	 	Cyprus Creek Land Resources, LLC	 	 
	 	 	Dixon Mining Company, LLC	 	 
	 	 	Dodge Hill Holding JV, LLC	 	 
	 	 	Dodge Hill Mining Company, LLC	 	 
	 	 	Dodge Hill of Kentucky, LLC	 	 
	 	 	Dyson Creek Coal Company, LLC	 	 
	 	 	EACC Camps, Inc.	 	 
	 	 	Eastern Associated Coal, LLC	 	 
	 	 	Eastern Coal Company, LLC	 	 
	 	 	Eastern Coal Holding Company, Inc.	 	 
	 	 	Eastern Royalty Corp.	 	 
	 	 	Falcon Coal Company, LLC	 	 
	 	 	Fort Energy, LLC	 	 
	 	 	Gallo Finance Company	 	 
	 	 	Gold Fields Chile, LLC	 	 
	 	 	Gold Fields Mining, LLC	 	 
	 	 	Gold Fields Ortiz, LLC	 	 
	 	 	Grand Eagle Mining, Inc.	 	 
	 	 	Hayden Gulch Terminal, Inc.	 	 
	 	 	Highland Mining Company, LLC	 	 
	 	 	Highwall Mining Services Company	 	 
	 	 	Hillside Mining Company	 	 
	 	 	HMC Mining, LLC	 	 
	 	 	Illinois Basin Oil & Gas, LLC	 	 
	 	 	Independence Material Handling, LLC	 	 
	 	 	Indian Hill Company	 	 
	 	 	Interior Holdings, LLC	 	 
	 	 	James River Coal Terminal, LLC	 	 
	 	 	Jarrell’s Branch Coal Company	 	 
	 	 	Juniper Coal Company	 	 
	 	 	Kayenta Mobile Home Park, Inc.	 	 
	 	 	Logan Fork Coal Company	 	 
	 	 	Martinka Coal Company, LLC	 	 
	 	 	Midco Supply and Equipment Corporation	 	 
	 	 	Midwest Coal Acquisition Corp.	 	 
	 	 	Midwest Coal Reserves of Illinois, LLC	 	 
	 	 	Midwest Coal Reserves of Indiana, LLC	 	 






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	 	 	Midwest Coal Resources, LLC	 	 
	 	 	Mountain View Coal Company, LLC	 	 
	 	 	Mustang Energy Company, L.L.C.	 	 
	 	 	New Mexico Coal Resources, LLC	 	 
	 	 	North Page Coal Corp.	 	 
	 	 	Patriot Coal Company, L.P.	 	 
	 	 	Patriot Midwest Holdings, LLC	 	 
	 	 	Peabody America, Inc.	 	 
	 	 	Peabody Archveyor, L.L.C.	 	 
	 	 	Peabody Cardinal Gasification, LLC	 	 
	 	 	Peabody Coal Company, LLC	 	 
	 	 	Peabody Development Company, LLC	 	 
	 	 	Peabody Electricity, LLC	 	 
	 	 	Peabody Energy Generation Holding Company	 	 
	 	 	Peabody Energy Investments, Inc.	 	 
	 	 	Peabody Energy Solutions, Inc.	 	 
	 	 	Peabody Holding Company, LLC	 	 
	 	 	Peabody Investments Corp.	 	 
	 	 	Peabody Natural Gas, LLC	 	 
	 	 	Peabody Natural Resources Company	 	 
	 	 	Peabody PowerTree Investments, LLC	 	 
	 	 	Peabody Recreational Lands, L.L.C.	 	 
	 	 	Peabody Southwestern Coal Company	 	 
	 	 	Peabody Terminals, LLC	 	 
	 	 	Peabody Venezuela Coal Corp.	 	 
	 	 	Peabody Venture Fund, LLC	 	 
	 	 	Peabody-Waterside Development, L.L.C.	 	 
	 	 	Peabody Western Coal Company	 	 
	 	 	PEC Equipment Company, LLC	 	 
	 	 	Pine Ridge Coal Company, LLC	 	 
	 	 	Point Pleasant Dock Company, LLC	 	 
	 	 	Pond Creek Land Resources, LLC	 	 
	 	 	Pond River Land Company	 	 
	 	 	Porcupine Production, LLC	 	 
	 	 	Porcupine Transportation, LLC	 	 
	 	 	Powder River Coal, LLC	 	 
	 	 	Powder River Resources, LLC	 	 
	 	 	Prairie State Generating Company, LLC	 	 
	 	 	Randolph Land Holding Company, LLC	 	 
	 	 	Rivers Edge Mining, Inc.	 	 
	 	 	Riverview Terminal Company	 	 
	 	 	Rockies Natural Gas, LLC	 	 
	 	 	School Creek Coal Company, LLC	 	 
	 	 	School Creek Coal Resources, LLC	 	 
	 	 	Seneca Coal Company	 	 
	 	 	Sentry Mining, LLC	 	 
	 	 	Shoshone Coal Corporation	 	 
	 	 	Snowberry Land Company	 	 
	 	 	Star Lake Energy Company, L.L.C.	 	 
	 	 	Sterling Smokeless Coal Company, LLC	 	 
	 	 	Sugar Camp Properties, LLC	 	 
	 	 	Thoroughbred Generating Company, LLC	 	 
	 	 	Thoroughbred Mining Company, L.L.C.	 	 






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	 	 	Twentymile Coal Company	 	 
	 	 	Union County Coal Company, LLC	 	 
	 	 	West Roundup Resources, Inc.	 	 
	 	 	Wyoming Natural Gas, LLC	 	 
	 	 	Yankeetown Dock, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Walter L. Hawkins, Jr.
 

Walter L. Hawkins, Jr.
	 	 
	 

	 	Title:
	 	Vice President & Treasurer	 	 
	 
	 	 	 	 	 	 
	 	 	U.S. Bank National Association as Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Philip G. Kane, Jr.
 

Philip G. Kane, Jr.
	 	 
	 

	 	Title:
	 	 Vice President	 	 






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SCHEDULE I




NEW GUARANTEEING SUBSIDIARIES




Caseyville Dock Company, LLC, a Delaware limited liability company

Dyson Creek Mining Company, LLC, a Delaware limited liability company

El Segundo Coal Company, LLC, a Delaware limited liability company

El Segundo Coal Resources, LLC, a Delaware limited liability company

Midwest Coal Resources II, LLC, a Delaware limited liability company

Ohio County Coal Company, LLC, a Delaware limited liability company

Peabody International Services, Inc., a Delaware corporation

Williams Fork Coal Company, LLC, a Delaware limited liability company

Williams Fork Coal Resources, LLC, a Delaware limited liability company





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